BALAGOT CHRISTINE RAFANAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3721/2019

[2025] HKCFI 1785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3721 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 oral submissions by the Applicant in open court;

1.   Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the only Putative Respondent; and (2) the Director of Immigration be named as the only Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 13 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against (1) the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 2 December 2019 (the “Board’s Decision”); (2) the decision of the Director of Immigration (the “Director”) dated 14 August 2018; (3) the Supplementary Claim Form issued by the Immigration Department dated 20 July 2018; and (4) the Record of Screening Interview issued by the Immigration Department dated 10 August 2018.

2.  At the hearing held on 7 March 2025, the Applicant confirmed that she is only seeking judicial review in respect of the Board’s Decision.  In any event, the Director’s decision dated 14 August 2018 had already been superseded by the Board’s Decision.  The Director’s decision is not a decision susceptible to judicial review once an appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45).  Accordingly, in so far as the Applicant seeks judicial review in relation to the Director’s decision, the application fails in limine.  Given the Applicant’s confirmation, I shall only focus on the Board’s Decision in the present application.

3.  In the Form, the Applicant has named both the Board and the Director as the proposed respondents and the proposed interested parties.  As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form accordingly on the court’s own motion.

4.  The Applicant had requested an oral hearing for the application.  The hearing took place on 7 March 2025.  The Applicant attended in person.  The Applicant however indicated that she had nothing to add at the hearing.

Background

5.  The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

6.  The applicable legal principles relating to application of this sort are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, 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.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

7.  In the Form, the Applicant did not state any grounds in support of the Leave Application.  In the supporting Affirmation, the Applicant made a number of allegations which can generally be summarized as follows:-

(1)  The Applicant did not agree with the Board’s Decision as her case had been determined unfairly.

(2)  The Applicant and her daughter will be harmed or killed by her previous spouse if they return to the Philippines.

(3)  The Applicant filed the Notice of Appeal to the Board without any legal and language assistance.  Accordingly, the Applicant claimed that there was procedural impropriety and miscarriage of justice.

(4)  The Applicant was not given any legal representation or language assistance throughout the Leave Application.

(5)  The Applicant did not receive any legal representation and she claimed that this is in violation of the principles laid down in FB & Ors v Director of Immigration and Secretary for Security (HCAL 51/2007).

(6)  The Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement.

(7)  The Board had acted in a procedurally unfair manner in dealing with the Applicant’s appeal.

(8)  The Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense, or was a result of procedural errors or unfairness.

(9)  The Board had failed to meet the greater care and duty owed to a self‑represented claimant.

(10)  It was very insensitive and possibly unlawful that the Board issued the Board’s Decision in English which the Applicant does not understand very well.  The Applicant claimed that she does not understand the reasoning of the Board’s Decision.

(11)  The Board should give adequate reasons as to what evidence it accepted and what evidence it rejected.

(12)  It was unreasonable, illogical and unacceptable for the Board to suggest that the Applicant could be relocated to other parts of the Philippines.

(13)  There remains a high risk that the Applicant’s life will be in danger if she is to return to Pakistan (sic).  In any event, the Immigration Department (and the Board)’s finding that there is state protection available to the Applicant in Pakistan (sic) is not true.

(14)  The Director placed unnecessary weight on the so-called law reform when in reality the level of corruption and police inefficiency in the Philippines is significantly more serious than the “efficient” implementation of law and reforms in the Philippines.

8.  I do not consider any of the above Applicant’s contention meritorious. I shall briefly set out my reasons below.

9.  In relation to points (1), (6) to (9) above, these grounds are nothing but vague assertions without particulars or elaboration.  The Applicant has not particularized, let alone demonstrated, how the Board had acted unlawfully, unfairly, unreasonably or irrationally as alleged.  In the premises, I do not consider any of these grounds reasonably arguable.

10.  In relation to point (2) identified above, the Board had considered the Applicant’s claims, including the alleged risk of harm from her previous spouse, in details in the Board’s Decision (see §§16-18, 43-53 of the Board’s Decision).  There is nothing to indicate that the Board’s analysis and findings in this regard were flawed.  The Applicant has failed to explain how the Board’s Decision in this regard was erroneous, unfair or unreasonable.

11.  In relation to points (3) to (5) and (10) identified above, the Applicant is basically complaining about the lack of legal representation, legal advice and language assistance.  In this regard, the Court of Appeal has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakhevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a claimant under Convention Against Torture (CAT), or a claimant under Articles 2 or 3 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap. 383) or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Ahmed Syed Rafiq [2018] HKCA 178, at §22. 

12.  On the question of language assistance in Re Karamjit Singh [2018] HKCA 460, the Court of Appeal adopted the rationale of the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant desired or required.  It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, she has to live with or cope with her language disability.  She cannot expect to have the luxury of any documents to be fully translated into her first language for her benefit.  

13.  In the present action, the Applicant was assisted by the duty lawyer service (the “DLS”) in making the non-refoulement claims (§§10-11 of the Board’s Decision).  The Director’s decision dated 14 August 2018 was read back to the Applicant via an interpreter.  The Applicant was further advised by the DLS that there were no grounds of appeal against the Director’s decision (§14 of the supporting Affirmation).  Despite that, the Applicant still proceeded with the appeal.  In the premises, it was unreasonable for the Applicant to complain about the lack of free legal representation when she had already been advised not to pursue such an appeal.

14.  At the hearing before the Board on 14 February 2019, the Applicant was provided a fair opportunity to present her case and she in fact did so.  The Applicant was assisted by an interpreter.  The Board was satisfied that the Applicant was able to communicate effectively, understood the Board’s proceedings and participated in a meaningful way (§41 of the Board’s Decision).  The Applicant did not complain to the Board at the hearing on 14 February 2019 of any difficulty in understanding the proceedings.  I do not find anything amiss arising from the alleged lack of legal representation in the process before the Board.  I also note that at the hearing held on 14 February 2019 before the Board, the Applicant did not complain about the “lack of legal assistance” or the “lack of language assistance”.  There is no evidence to suggest that there was any procedural unfairness in this regard.

15.  I further note that all the court documents (the Form and the supporting Affirmation) filed in the Leave Application were all written in English.  This indicates either the Applicant is familiar with the English language or that she had access to, or was able to seek, such language assistance as she may require.

16.  Last but not least, it is also important to note that at the hearing on 7 March 2025 before this Court, despite having an opportunity to make submissions with the assistance of a court arranged interpreter, the Applicant indicated that she had nothing to add.

17.  All the above indicates that the grounds based on the alleged lack of legal and language assistance are unmeritorious and are not reasonably arguable.  I do not consider there was any violation of principles which renders the Board’s Decision unfair or unlawful as alleged.

18.  Point (11) identified in paragraph 7 above is plainly unmeritorious. The Board had clearly stated what evidence it accepted or rejected (see §§43- 60 of the Board’s Decision).

19.  In relation to point (12) identified above, the Board had duly considered the Applicant’s arguments on internal relocation.  The Board was entitled to come to the conclusion it did (see §§50-53 of the Board’s Decision).  I see no basis to disturb the Board’s finding in this regard.

20.  Point (13) identified above is plainly misconceived.  The Applicant did not come from Pakistan and the Board’s Decision did not touch upon Pakistan. It is clear that the Applicant simply copied the ground from somewhere.

21.  In relation to point (14) identified above, it appears that the Applicant is criticizing the Director’s decision rather than the Board’s Decision.  The Board certainly did not “place unnecessary weight” on the law reform in the Philippines. In fact, the Board simply stated that it had regard to the COI materials in the bundle and noted that the Applicant did not provide any COI materials in response (§39 of the Board’s Decision).  I see no merits in the Applicant’s contention.

22.  Having fully considered the Board’s Decision. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same.  There is nothing to indicate that the Board had failed to take into account any relevant matters.  The Board’s Decision was comprehensive with adequate reasons provided. It satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.

23.  In the premises, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review.

24.  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.

Conclusion

25.  In the premises, I make an order that the Form be amended as described above 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