VILLANUEVA GLYZA MAE BARRERA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 324/2021

[2025] HKCFI 5680

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 324 of 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

1.  Form 86 be amended as follows:- the date of the decision in respect of which relief is sought be amended to 19 January 2021.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 10 March 2021 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 19 January 2021 (the “Board’s Decision”). 

2.  On the Form, the Applicant had mis-stated the date of the decision as 10 January 2021.  As the correct date of the Board’s Decision is 19 January 2021, I make an order to amend the date on the Form on the Court’s own motion.

3.  The Applicant requested an oral hearing for the Leave Application.  The hearing took place on 27 October 2025 but the Applicant did not attend the hearing.  Notice of Hearing was issued to the Applicant on 14 October 2025 at the address provided by the Applicant on the Form.  The Court has not received any returned mail to date.  On 23 and 24 October 2025, attempts were also made to remind the Applicant of the hearing by phone at the numbers provided by the Applicant on the Administrative Form and on Form No. 8.  However, the Applicant could not be reached by the numbers. 

4.  After the issuance of the Notice of Hearing, the Court was informed by the Immigration Department of another address provided by the Applicant. However, the Applicant has not filed any Notice of Change of Address to the Court to date.  There is nothing to indicate that the address the Applicant provided to the Court on the Form is not valid.

5.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).

6.  As the Notice of Hearing was issued to the Applicant at the address provided by the Applicant to the Court, and the Court has not received any returned Notice of Hearing, the Applicant ought to have notice of the hearing. In the premises, I consider it appropriate to proceed with the Leave Application in the absence of the Applicant.

Background

7.  The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision[1] is included below for reference.

Discussion

8.  The applicable legal principles relating to application of this sort are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director of Immigration (the “Director”) and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The 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 Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

9.  The Applicant did not provide any grounds in support of the Leave Application in the Form or in the supporting Affirmation. 

10.  I have considered the Board’s Decision in detail.  I do not find any error of law, procedural unfairness or irrationality.  Neither has the Applicant been able to demonstrate any of the same.  There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board was entitled to reject the claim based on the evidence and the reasons provided (§§48-95 of the Board’s Decision), in particular because of the major discrepancies in the Applicant’s evidence (§§48-60 of the Board’s Decision).   

11.  I find that the Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. 

12.  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me.

Conclusion

13.  In the premises, I make an order that the Form be amended as described above and the Leave Application be 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