MAXIMO JENNIFER CONCHA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1198/2022

[2026] HKCFI 1627

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1198 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 3 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 9 September 2022 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 13 August 2021 (the “DOI Decision”).

2.  The Applicant requested for a hearing of this application. When asked whether she had anything to add, she said she had nothing to add but asked if the present hearing concerned his son, which this Court told her that it did not.

Background

3.  The Applicant was a national of Philippines. In gist, she fears that if she were to return to the Philippines, she would be harmed or even killed by a loan shark and does not want to return until she could settle the debt. 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

4.  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.

5.  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.

6.  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.

7.  The Applicant’s Form 86 sets out three grounds on which the relief is sought. However, those grounds are either vague or generic, or concern factual matters which have either been fully considered by the TCAB. In reality, they did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

8.  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 [35‑83]. In particular, the TCAB noted that the Applicant was only making bare assertions and provided no objective proof of these assertions [37, 53]. While the TCAB accepted that the terms of the loan made sense [53], it rejected her evidence and reasoning as to why she could [55-56] or needed to borrow so much [57], and thus did not accept that she had borrowed so much, taking into account the fact that she had never worked [55] and the general economic situation of the country [57]. The TCAB could not accept the other bare assertions made by the Applicant as there was no evidence in support provided [74-84]. Having considered the materials available, the TCAB did not accept that the Applicant could not relocate, as the area she was situated at was fairly remote, as the Applicant acknowledged [69], making it accessible to her to relocate to other cities where she would have numerous options for work [68-73]. In view of the above findings, the Applicant’s grounds of appeal below were bound to fail.

9.  The Applicant’s grounds of appeal are, in gist, as follows:

a.  She claims that the decision is substantially unfair. But she did not explain why this is the case. As stated above, the TCAB has considered all the evidence and relevant authorities in coming to its conclusion.

b.  She claims that she is preparing this application without legal representation. For completeness, it is noted that the Applicant has applied for legal aid on 12 December 2022 and that her application has been refused on 15 February 2023. The high standard of fairness does not grant the Applicant an absolute right to free legal representation or interpretation services at all stages of the proceedings (Re Zafar Muazam (unrep., CACV 2/2018, 23 March 2018); Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; Re Ahmad Syed Rafiq [2018] HKCA 178 at §22; Akhondo Shakil [2021] HKCA 1616 at §20[10]; Vu Hong Diep v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2023] HKCA 1378; Kamran Khan [2022] HKCFI 1924 at §§21-25 and [2022] HKCA 230 at §§16‑17).

c.  She claims that the adjudicator has ignored material evidence and facts, including about why she could not relocate within the Philippines and why there was no documents relating to her loan. As stated above, the TCAB took into consideration of all material evidence in coming to their conclusion, and had fully taken into account such evidence. It is also to be noted that the TCAB’s reasoning did not depend on whether the loan was supported by documentary evidence, but rather on inherent probabilities: see also [59-61].  

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