MAGANA CLARISSA LUSONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 793/2020

[2025] HKCFI 3512

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 793 of 2020

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

Following;

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

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

Observations for the Applicant:

1.  By a Form 86 filed on 29 April 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB”) made on 24 April 2020 (“the TCAB Decision”). A copy of the TCAB Decision can be viewed by the following hyperlink[1].

2.  The TCAB Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 9 October 2019.

3.  The Applicant is a national of the Philippines. The Applicant’s non-refoulement claim was based on an alleged risk of being harmed or killed by her cohabitant. After a hearing, the TCAB found the Applicant unable to establish a real risk pertinent to any of the applicable grounds.

4.  The Applicant has set out a few grounds of judicial review on which relief is sought in the supporting affirmation of this leave application. First, the Applicant said she was not given an opportunity to keep forward her submissions in the TCAB hearing. Secondly, the TCAB had relied on country of origin information (“COI”) which was not officially recognised or simply hearsay. It was also said the TCAB had relied on information which was fairly outdated.

5.  On the first complaint, the Applicant also mentioned in the affirmation that “[e]ven if the Adjudicator decides to not have oral hearing, he should at least invite me to submit written submissions and evidence.” In the oral hearing before this Court, the Applicant confirmed that there was actually an oral hearing before the TCAB with the service of a Tagalog interpreter to provide language assistance to her. The Applicant further told me “I was treated well” in the TCAB proceedings and confirmed that the Adjudicator of the TCAB had given sufficient time for her to make her submissions. She could not provide any reasons why she stated something completely different in the affirmation. Upon further confirmation with the Applicant, she maintained that what she told the Court orally is her correct position and stance. The first ground is thus treated as effectively withdrawn and dismissed.

6.  As to the second ground, the TCAB Decision shows that the TCAB had considered abundant COI, some of which were official country reports issued by foreign Governments. I see no basis to suggest that such COI did not come from reliable sources. The Applicant also failed to identify with sufficient clarity which particular sources of COI relied upon by the TCAB were unrecognized or outdated. In any event, the conclusion reached by the TCAB was not only purely based on the strength of the COI but also the inherent weakness of the Applicant’s case.

7.  The TCAB conducted a hearing to inquire into the facts of the Applicant’s claim. The TCAB stated the applicable legal principles in the TCAB Decision and set out the Applicant’s case comprehensively. It was accepted that the Applicant was generally coherent. However, the TCAB found no real and personal risk of harm in this case. The Applicant’s claim also did not involve any State acquaintance (in both its active and passive sense). The TCAB was satisfied that effective state protection would be available for the Applicant.

8.  I have reviewed the TCAB Decision vigorously. In my judgment, the TCAB Decision was based on sound factual findings and there was no apparent legal error in the decision. These findings were within the TCAB’s discretion and supported by evidence.

9.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any future risk of ill-treatment exists if an applicant returns to his/her home country lies with the TCAB. In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the TCAB’s findings or make a determination on the case afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246). The leave application is accordingly 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