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HCAL 976/2020
[2025] HKCFI 3335
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 976 OF 2020
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BETWEEN
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Saba, Perlita Catapang |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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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”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 8 May 2020”.
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 22 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 31 December 2018, which was the date of the decision of the Director of Immigration (“the Director”).
2. However, the applicant had petitioned against the Director’s decision dated 31 December 2018 (“the Director’s Decision”) to the Torture Claims Appeal Board (“the Board”). The Board refused the applicant’s petition by its decision dated 8 May 2020 (“the Board’s Decision).
3. Thus, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549).
4. At the oral hearing of the Leave Application before this court on 20 May 2025, the applicant told this court that she could not recall which decision she was referring to in the Leave Application. However, as aforesaid, only the Board’s Decision is reviewable as the Director’s Decision had already been superseded. Thus, this court will treat the Board’s Decision as the decision in respect of which relief is sought in the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000976_2020_files/the_Board's_Decision.pdf
5. The applicant had previously lodged a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 1 October 2011 (“the Torture Claim”), which was rejected by the Director on 15 June 2012. The applicant petitioned against that decision on 29 June 2012 and the adjudicator, Mr Ian Candy, refused the petition on 12 July 2012.
6. As the Torture Claim had already been dealt with, both the Director’s Decision and the Board’s Decision did not deal with the applicant’s Torture Risk[1], but the remaining three applicable grounds under the Unified Screening Mechanism (“the USM”), namely BOR 2 Risk[2], BOR 3 Risk[3] and Persecution Risk[4], were assessed.
7. The Board decided that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM (other than Torture Risk which had already been decided previously) and confirmed the Director’s Decision accordingly.
Amendments
8. The applicant wrongly named “Non-refoulement Claims Petition Office” as the putative respondent and “Lala-an Jonathan Edorot” as the putative interested party in Form 86, when the Board should be named as the putative respondent and the Director as the putative interested party.
9. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board, and thus it should not be named as a putative respondent at all.
10. This court therefore 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”.
11. As aforesaid, the Board’s Decision should be the decision in respect of which relief is sought. Hence, the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 8 May 2020”.
The applicant’s case
12. 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.
13. In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, her husband, who was the assistant commander of the New People’s Army (“NPA”) in Batangas City area, would kill or harm her, as she had an extra-marital affair with a man and gave birth to two children in Hong Kong.
Oral hearing
14. The applicant requested for an oral hearing of the Leave Application, and her case was heard on 20 May 2025.
15. At the hearing, the applicant reiterated that her life would be in danger if refouled. She added that her younger son in Hong Kong needs constant medical care as he has health problems with his heart and cannot walk. Although the sons and their father are Hong Kong residents, the sons are living with her and she needs to stay in Hong Kong to take care of them.
Grounds for judicial review
16. 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).
17. The applicant’s Form 86 and the supporting affidavit dated 22 May 2020 were not made by herself, but by her authorized representative, Mr Lala-An, Jonathan Edorot. The applicant or her authorized representative did not advance any specific ground for her intended judicial review in Form 86 nor in the supporting affidavit. The authorized representative merely stated in the supporting affidavit that the Board’s Decision was not satisfactory and this is the reason for the appeal or judicial review. The supporting affidavit also mentioned that new proofs would be presented during the court proceedings.
Discussion
18. 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).
19. Thus, the applicant cannot ask this court to re-assess the facts of her case, and this court will not accept new proof from her even if she has any to submit at this stage. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.
20. However, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any specific ground being advanced by the applicant for the intended judicial review.
21. In assessing the petition by the applicant, the Board held an oral hearing on 27 June 2019. The applicant was present and given the chance to present her case to the Board in person. The Board carefully examined her evidence and questioned the applicant for details.
22. 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 in fact accepted that there was a real risk of ill-treatment and harm and even death from her husband if the applicant were to return to her home village in Mindoro of the Philippines.
23. However, on the basis of the then most updated country of origin information (“COI”) for the applicant’s country from different sources, the Board did not accept that the applicant’s husband had influence and reach throughout the Philippines through the NPA. Taking into account that she had no contact with her husband since 1995, the Board did not accept that her husband was still constantly looking for her in the Philippines or that her husband would be aware of her return to the Philippines if she did not go back to Mindoro. In addition, the applicant had ample work experience. The Board hence concluded that internal relocation would not be unduly harsh and was viable for the applicant.
24. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
25. 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 errors 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.
26. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys 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
27. For reasons aforesaid, the Leave Application is dismissed.
Dated the 6th day of August 2025
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( Irene LEE )
for Registrar, High Court
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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: 6 August 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: 6 August 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15258/19/1/131/F990
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 4903/18
(Formerly RBCZ 13337/16) [T8S53]
QA T/C 162/12
(formerly RBCZ 1158/11)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture under part VIIC of the Immigration Ordinance, Cap. 115.
[2] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.
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