MADKIL MARY ANN MANOCHON v. TORTURE CLAIMS APPEAL BOARD

HCAL 1713/2023

[2026] HKCFI 3403

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1713 OF 2023

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 25 September 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 18 September 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001713_2023_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 21 February 2023, which rejected her non-refoulement claim.

Amendments

3.  In Form 86, the applicant named the Board / Non-refoulement Claims Petition Office as the 1^st putative respondent and the Director as the 2^nd putative respondent, and named them both as the putative interested parties as well.

4.  In fact, only the Board should be the putative respondent, and only the Director should be the putative interested party.

5.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a party at all.

6.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

7.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

8.  In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, her life would be in danger from her ex-boyfriend Toper Bedey (“Toper”) and his subordinates in the New People’s Army (“NPA”) as he was angry that the applicant unilaterally ended their relationship and also concerned that she had information about his group’s activities gained when she lived with them.

Disposal on paper

9.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

10.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

11.  The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 25 September 2023.

Discussion

12.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

13.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

14.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 6 June 2023. The applicant was present and was given the chance to present her case to the Board in person.

15.  As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. The findings of the Board in relation to the credibility of the applicant’s claim were laid out in paragraphs 93 to 99 of the Board’s Decision, and it is not necessary for this court to repeat the same here.

16.  In gist, the Board found numerous aspects of the applicant’s claims made little if any sense, and she was unable to explain them in any plausible way. The Board also had difficulty understanding and therefore accepting why the applicant’s ex-boyfriend, who the applicant claimed to be a NPA commander, and his followers would be motivated to marshal the resources of their organisation in order to pursue the applicant when the group was actively involved in an armed insurgency and in conflict with government forces as illustrated by country of origin information (“COI”).

17.  The applicant made a number of demonstrably false claims at the Board’s hearing. Further, the applicant attested as to the truth and accuracy of the contents of the Notice of Appeal/Petition (“NOAP”) when it had largely been copied verbatim from an earlier NOAP filed by an unrelated claimant from a different country, suggesting that the applicant was prepared to advance claims in support of her appeal/petition regardless of their truth or accuracy.

18.  Thus, after careful consideration of the applicant’s claims and evidence, the Board concluded that the applicant was not a witness of truth, and rejected her account in its entirety. The Board did not accept that the applicant had any association with a NPA leader named Toper, that she had to escape from his camp in fear for her life, or that he or his associates had pursued or were pursuing her with a view to harming her. Consequently, the Board was not satisfied that the applicant faced any risk whatsoever of being killed or seriously harmed for the reasons claimed if she returned to the Philippines.

19.  Thus, the Board concluded that the applicant’s appeal/petition and her claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the USM.

20.  The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s account was rejected in its entirety, it is not necessary for the Board to consider the availability of state protection.

21.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

22.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to further consider internal relocation.

23.  The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

24.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

25.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

26.  For reasons aforesaid, the Leave Application is dismissed.

Where leave to apply has been granted, applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the respondent’s evidence

Form CALL-1