TAWAGON ROSE-ANN JULIAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 544/2021

[2026] HKCFI 1176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 544 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of documents only;          or
	consideration of the documents and the oral submissions of the Applicant in open court;

1.  Form 86 be amended, naming only the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office as the Putative Respondent.

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

3.  Insofar as necessary, the application to consolidate the present case with her children’s application or intended application be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 dated 19 April 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 19 March 2021 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 10 January 2020.

2.  I amend Form 86 on my own motion to name only the TCAB as the putative respondent.

3.  In the Form 86, the Applicant appears to have sought leave for judicial review against the DOI Decision. But the DOI Decision is superseded by the TCAB Decision (Re Moshin Ali [2018] HKCA 549 at [45]). Thus, I treat the TCAB Decision as the subject matter of the present application.

4.  The Applicant requested for a hearing of this application. When asked whether she had anything to add, she asked whether her children’s cases could be consolidated with hers. I refused to consolidate with the children’s application (or intended application). No formal application had ever been made, and the particulars of the children’s application or intended application were entirely unknown. In any event, I do not see that the application (if any) falls within either limb of RHC O 15 r 6(2)(b) as I do not see that any of her children ought to have been joined as a party, that they will have their legal or financial rights directly affected by the determination of this action (including any order made), or that they have the requisite direct interest in the subject matter of the action. Rather, they have at best only a remote, indirect, and contingent interest which is insufficient to justify their intervention in this case. I also do not see that any relevant question or issue arises under r 6(b)(ii) which it is “just and convenient” to determine between the parties in these proceedings, and would not exercise my discretion to add the order the addition of the Wife or Daughters to the action as Applicants (Elysium Ltd v Sum Ka Kuen Dominic [2023] HKCFI 1690 at §§19-24, 28, 30, 34, 37, 40-44).

Background

5.  The Applicant was a national of Philippines. In gist, she fears of being harmed or mistreated by her husband if she were to return to her home country. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them. Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

6.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

7.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

8.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

9.  The Applicant did not state any grounds on which the relief is sought other than stating in her affidavit “…the [Immigration Department] disregard my dangarous [sic] situation”, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

10.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all the applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [99-123]. In particular, the TCAB took a nuanced approach and found that her evidence was largely credible [55-58, 70]. Having carefully considered the extensive country of origin information against the Applicant’s version of event, including the fact that, as the TCAB accepted, that the Applicant could not divorce her husband and that her choices were limited to get out of an abusive marriage [70], the TCAB concluded, correctly in my view, that effective state protection would be available to the Applicant [60-98]. It would also not be unreasonable for the Applicant to relocate given her personal circumstances [119-121].

11.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review 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