LUPOS MARY JOY ADIANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1514/2022

[2026] HKCFI 3138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1514 of 2022

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:

Introduction

1.  By a Form 86 filed on 16 December 2022 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 13 December 2022 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 21 January 2022 in refusing the Applicant’s non-refoulement protection claim. She named the TCAB as the proposed respondent and the DOI as an interested party.

2.  The Applicant requested for a hearing and she attended the same. When asked if she had anything to add she confirmed that she had not.

Background

3.  The Applicant is a national the Philippines. She seeks non-refoulement protection on the basis that if she was returned, she would be killed by a person from whom she had borrowed money and could not repay. Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

4.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. 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, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

5.  In both of the Form 86 and her affidavit filed in support of the application, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

6.  Looking at the TCAB Decision, the TCAB took into consideration the Applicant’s case and evidence, including her testimony at the hearing before it and relevant Country of Origin Information [3, 6-11, 24].

7.  The TCAB also bore in mid the correct legal principles in respect of each of the four applicable grounds [12-23].

8.  After thoroughly analysing and assessing the above, the TCAB came to the findings and conclusions that none of the Applicant’s allegations was made out [24-40], and none of the grounds was made out [41-48].

9.  I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

10.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

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