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HCAL 922/2020
[2025] HKCFI 2176
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 922 OF 2020
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Yampan Talin Kimkiman |
Applicant |
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and
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Torture Claims Appeal Board
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 18 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 7 May 2020 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000922_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 27 November 2018 and confirmed the same.
Amendments
3. The applicant named both the Board and Immigration Department as the putative respondents and the putative interested parties in Form 86, when only the Board should be the putative respondent and only the Director should be the putative interested party.
4. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
The applicant’s case
5. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
6. In sum, the applicant claimed for non-refoulement protection because she feared being killed by her husband if refouled to the Philippines, as her husband discovered that she knew his relationship with another woman in the Philippines. She was always a victim as a battered wife.
Oral hearing
7. The applicant requested for an oral hearing of the Leave Application. Her case was heard on 20 May 2025.
8. At the hearing, the applicant merely reiterated that her life would be in danger if refouled. Apart from that, she had nothing to add.
Grounds for judicial review
9. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
10. The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affidavit dated 18 May 2020. She merely stated in Form 86 that she would like to reject and review the Board’s Decision. She further stated in her supporting affidavit that the Board disregarded her dangerous situation.
Discussion
11. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).
12. Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision as aforesaid.
13. In assessing the appeal by the applicant, the Board held an oral hearing on 6 May 2019. The applicant was present and was given the chance to present her case and grounds of appeal to the Board in person. The Board carefully examined her evidence and questioned the applicant for details.
14. As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims. The Board found that the applicant was not a witness of truth and was not satisfied that the applicant had told the Board the truth in relation to critical elements of her claims. The Board also considered the applicant’s delay in making her non-refoulement claim reflected poorly on her credibility and the reliability of her evidence. Hence, the Board found that there was not a real risk the applicant would face any of the proscribed forms of harm should she return to the Philippines.
15. Thus, the Board did deal with the applicant’s alleged danger in the Board’s Decision and concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.
16. Moreover, the Board had discussed the availability of state protection with the applicant based on country of origin information. The applicant believed that the Office of the Ombudsman would handle her case, but she was afraid that her husband would do something worse to her if he found out about that. The Board also referred the applicant to the Department of Social Welfare in the Philippines which assisted women suffering from various violence and harm. The Philippine National Police also maintained a women and children’s unit with thousands of helpdesks throughout the country to deal with abuse cases. The applicant agreed that she could seek help from these officials but was worried that they would not help her immediately. Thus, although the Board did not make any express finding on state protection, reasonable state protection is available to her on her own admission despite her worries.
17. As to internal relocation, the applicant mentioned that it would be difficult to relocate especially when people did not have money and did not know anyone, and that internal relocation required hiding and concealing her true identity and living in fear for the whole of her life. Although the Board did not make any express finding on internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).
18. As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to further consider internal relocation.
19. As aforesaid, the finding of facts was solely within the ambit of the Board. This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board.
20. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
21. In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
22. For reasons aforesaid, the Leave Application is dismissed.
Dated the 27thday of May 2025
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( Thomas Chan )
for Registrar, High Court |
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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 27/5/2025
Applicant’s ref. no:
Nil
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 27/5/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 14790/18/12/147/F964
Director of Immigration
Putative interested party’s ref. no.: QA T/C 4203/18 (formerly RBCZ 10032/18) (T6I123)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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