FINULIAR MARY JANE CABE v. TORTURE CLAIMS APPEAL BOARD

HCAL 1469/2022

[2025] HKCFI 4587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1469 OF 2022

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 andoral 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 to withdraw the application for leave to apply for judicial review be refused.

3.      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 12 December 2022, 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 6 December 2022 (“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/2022/HCAL001469_2022_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had not made out a case for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed her appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 14 May 2020.

Amendments

3.  In Form 86, the applicant named “LIU Pui-yee, Member of the Torture Claims Appeal Board” as the putative respondent and the Board as the putative interested party, when only the Board should be the putative respondent and the Director should be the putative interested party. 

4.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

5.  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.

6.  In sum, the applicant claimed for non-refoulement protection because she feared that, if refouled to the Philippines, she would be killed by Salvador Payumo (“SP”) and Racquel Padilla (“RP”) who both were loan sharks from whom she borrowed money in 2007.

Withdrawal of the Leave Application

7.  By way of a letter dated 24 June 2025, the Director notified this court that the applicant wrote a letter dated 23 June 2025 to withdraw her judicial review.  In the applicant’s letter, she stated that she would like to withdraw her judicial review and she wanted to return to her home country as soon as possible.

8.  There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition.  With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application even though she had previously requested one.

9.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

10.  Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant.  This court will proceed to determine the merits of the Leave Application.

Grounds for judicial review

11.  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).

12.  The applicant did not advance any ground for the intended judicial review in Form 86, nor in her supporting affirmation dated 12 December 2022.  She merely stated in the affirmation that she did not want to return to her home country because she still had problem in her country.

Discussion

13.  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).

14.  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.

15.  The applicant was afforded an oral hearing before the Board on 29 July 2022 and the applicant was present.  Thus, the applicant did have the opportunity to present her case to the Board in person.

16.  The Board found that it was only the applicant’s mere assertion that AP and RP would kill her upon her return to the Philippines.  Based on the information provided by the applicant, no severe pain or suffering within the definition of “torture” was ever inflicted upon her at the time when she was in the Philippines.  There was no strong evidence suggesting that her feared treatment was inflicted by, or with the consent or acquiescence of a government official or other people acting in an official capacity. SP and RP were merely loan sharks.  It was only the applicant’s mere speculation that SP and RP were influential in the Philippines.  The applicant’s claim on the ground of torture thus failed.

17.  The applicant’s fear of ill-treatment did not fall within any of the Convention Categories.  It was only a private and personal matter involving the loan and employment dispute with SP and RP.  There was nothing connected with race, religion, nationality, membership of a particular social group or political opinion.  It was only the applicant’s mere assertion that she would be persecuted upon her return to her country by SP and RP.  The applicant’s claim on the ground of persecution hence failed.

18.  The Board did not accept that ill-treatment encountered by the applicant attained a minimum level of severity.  She did not suffer physical injury or require hospital treatment.  The applicant never reported her incidents to the police.  Extensive country of origin information (“COI”) showed that reasonable state protection existed under the legal framework in the Philippines.  The Board concluded that reasonable state protection was available for the applicant upon her return.  There was no real risk that the applicant would face ill-treatment or arbitrary deprivation of life upon refoulement.

19.  Moreover, the Board found that internal relocation was viable for the applicant.  There was no substantive evidence to support the applicant’s allegation that SP and RP would have such huge man-power to locate her whereabouts if she were to relocate to other parts of the country.  Being an able-bodied adult with around 10 years of work experience within and outside the Philippines, and who had received university education, it was not unduly harsh or unreasonable for the applicant to relocate to other cities in the Philippines to avoid SP and RP.

20.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its decision. 

21.  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 errors 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.

22.  Thus, there is no merits in the Leave Application at all.

23.  Moreover, as the applicant had confirmed by way of her letter dated 23 June 2025 that she would like to withdraw her judicial review relating to her non-refoulement claim in Hong Kong, it is clear that she no longer seeks non-refoulement protection and the Leave Application serves no practical purpose.

24.  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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application ought to be dismissed.

Conclusion

25.  For reasons aforesaid, the application to withdraw the Leave Application is refused and 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