HERMOSA SARAH JANE PALLOC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3613/2019

[2025] HKCFI 2530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3613 of 2019

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

1.  Form 86 be amended, naming the Director of Immigration as the Putative Interested Party and correcting the date of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office in respect of which leave is sought to 2 December 2019.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) dated 4 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 2 December 2019[1] (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 4 April 2019 (“the Director’s Decision”), which rejected her non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

2.  The Applicant has mistakenly referred, in Form 86, the Board as the proposed interested party and the date of the Board’s Decision to be 4 April 2019. I have corrected these on my own motion.

Background

3.  The Applicant’s personal background, the incidents alleged by her to show that she would be killed by her ex-live-in partner in Philippines, and the immigration and procedural history, etc. can be found in the Board’s Decision. It is not necessary for me to restate them, and where appropriate, reference can be made to the Board’s Decision, the hyperlink to which is included below[2]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

4.  First of all, in view of the seriousness of the issues involved, I have reminded myself to consider the decision of the Board with vigorous examination and anxious scrutiny, applying an enhanced standard (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

5.  At the hearing before the Board, the Applicant adopted the information from the Hearing Bundle, in the NCF, at the Interview and in the NOA as evidence supporting her non-refoulement claim. The Board had asked her questions and discussed her non-refoulement claim under all the Grounds. The Board had also given her the opportunity to make submissions. Due to the “multiple, material inconsistencies and implausibilities” in the Applicant’s evidence, the Board found that she was not a credible witness and concluded that (see §§8, 35, 40-47 of the Board’s Decision):

(1)  there was not a real risk that the Applicant would face persecution if she were to be refouled. She had failed to establish she had a well-founded fear of persecution.

(2)  the Applicant did not face a real risk of torture if she were refouled. She had failed to substantiate that she had a well-founded fear of torture as defined.

(3)  the Appellant did not face a real risk of being subject to torture or CIDTP if she were refouled. She had failed to establish there was a genuine and substantial risk that she would be subject to torture or CIDTP under BOR 3.

(4)  the Applicant did not face a real risk of being deprived of her right to life if she were refouled. She had failed to establish that there was a genuine and substantial risk of her being deprived of the right to life under BOR 2.

6.  These matters were primarily within the province of the Board. The Applicant has failed to identify any grounds for judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142). He has not shown that there was any error of law, procedural unfairness or irrationality in the Board’s Decision. It is inadequate for him to merely exhibit a copy of the Board’s Decision in his supporting affirmation, hoping that the Court may step in to adjudicate the matter afresh.

7.  It is not the Court’s role in a judicial review to provide a further avenue of appeal. In the absence of any valid public law grounds, the Court should not usurp the role of the Board (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).

8.  For these reasons, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676). The requirement for leave to apply for judicial review operates to filter out unarguable challenges (see section 21K(3) of the High Court Ordinance, Cap. 4 and Order 53 rule 3(1) of the Rules of the High Court, Cap. 4A).

Conclusion

9.  I accordingly make an order that Form 86 be amended as described and the Leave Application be 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