LOCRE MA LIZA OLIVA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3253/2019

[2025] HKCFI 3331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3253 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decisiondated 30 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.  The applicant requested an oral hearing. She appeared the Court at the hearing on 9 July 2025.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 52, is a national of the Philippines. She worked as a domestic helper since 7 October 2009. Her employment contract terminated on 7 October 2011. She did not leave Hong Kong and was arrested for overstaying. She raised her non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her ex-employer in the Philippines because she was accused of releasing information to police there that her ex-employer was running gaming business. She was threatened with death before she fled the Philippines in 2009.

The Director’s Decision

5.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.  By way of the Director’s Notice of Decision dated 23 August 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, state protection will be available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board.  On 9 April 2019, the Board conducted an oral hearing for her with an interpreter. She had given oral evidence in response to the Board’s questions.

8.  Having considered the applicant’s evidence [42]-[72], the Board came to the conclusion below.

(1)  The applicant’s evidence on the facts in support of her appeal was not acceptable because inconsistencies. [18]

(2)  Her risk of being harmed is low and state protection will be available if she returns to the Philippines. [25] and

(3)  Internal relocation is viable if she returns to the Philippines. [25(j)]

9.  For the above reasons, the Board dismissed her appeal. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003253_2019_files/the_Board's_Decision.pdf.

Application for leave to apply for judicial review of the Board’s Decision

10.  The applicant has filed Form 86 dated 1 November 2019 for leave to apply for judicial review of the Board’s Decision.

11.  The applicant has raised the grounds below in support of her application:

(1)  She was not given a chance to put forward her submissions before the Board.

(2)  The Board relied on the source of news which is not officially recognized or it is hearsay and it had also relied on outdated cases.

DISCUSSION

12.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, I asked the applicant why she complained that she was not given a chance to make submissions to the Board as the Board recorded in the Board’s Decision that she had answered the Board’s questions. She was unable to give any explanation. I find this ground not believable. The other ground is simply her bare allegation without any evidence in support.

14.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The 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 Board.”

15.  The applicant has raised no valid ground to challenge the Board’s Decision.

16.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

17.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her 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