ELVAMBUENA MAUREEN BERGONIO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

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

Following:

1.   Form 86 be amended, naming only the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 28 November 2022 (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 14 November 2022 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 30 December 2021 (the “DOI Decision”).

2.  I amend the Form 86 on my own motion, naming only the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application and she attended the same. When asked, she said that she had nothing to add.

4.  The Applicant is a national of the Philippines.  In gist, she fears she would be harmed or even killed by her ex-boyfriend, who accused her of cheating on him, 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, the TCAB’s abbreviations and descriptions are adopted herein.

Discussion

5.  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.

6.  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.

7.  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.

8.  The Applicant did not state any grounds on which the relief is sought and hence, does not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

9.  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 applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [30‑59]. Upon consideration of all material evidence, the TCAB did not find the Applicant to be credible [37].  In particular, the TCAB found that the discrepancies in the Applicant’s evidence were too numerous and impossible to be reconciled, rendering the evidence unreliable, and leading to the conclusion that there was no real threat or risk of harm if she were to return [34-37].  For example, despite the alleged threats, she chose to return to the Philippines for a prolonged period of time [31(c)].  In any event, the TCAB concluded that it was difficult to consider the Applicant to be honest [31(l), 37], that there was no real chance that the Applicant will be harmed, and if she were, that state protection and relocation would be available to her [57-59].

10.  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