MARTICIO MELCRIS ANDOY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 127/2020

[2025] HKCFI 1688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 127 of 2020

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/  The Form 86 is amended on the Court’s own motion; and

2.  Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 13 January 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision by the Torture Claims Appeal Board (the “TCAB”) dated 3 January 2020 (the “TCAB Decision”), which affirmed the decision by the Director of Immigration (the “DOI”) dated 28 April 2017 refusing the Applicant’s non-refoulement claim on the basis of BOR 2 risk.  She named the TCAB as both the proposed respondent and an interested party.

2.  From the papers filed for this application, there was another decision dated 17 March 2017 (the “2017 TCAB Decision”) in which the TCAB affirmed the DOI’s decision dated 10 November 2015 refusing the Applicant’s non-refoulement claim on the basis of torture risk, persecution risk and BOR 3 risk.  The 2017 TCAB Decision is not featured in the Form 86 and in any event long over time for judicial review.

3.  I amended the Form 86 on my own motion to name only the DOI as a putative interested party.

4.  The Applicant requested for a hearing of this application and she attended the same.

Background

5.  The Applicant is a national of the Philippines.  Her non-refoulement protection claim based on BOR 2 risk is made on the basis of domestic violence and that her husband will kill her if she is returned.  Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

6.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  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, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

7.  In her affirmation filed in support of the Form 86, the Applicant raised 3 grounds for review :-

7.1  “ Procedural Impropriety – Failure to consider my fear that I would be face real risk still upon refoulement…the [TCAB] completely failed to [observe] my fear under BOR 2 law” [sic.];

7.2  “ Errors/misdirection in law – the TCAB failed to proper inquiry my claim, and gave his decision based on paper review, where my fear was consider very low” [sic.];

7.3  “ Procedural Impropriety – failure to proper consider my claim under BOR 2” [sic.].

8.  At the hearing, the Applicant said that her husband made another threat to her children in the Philippines, and as a result she arranged her parents and siblings to move her children away from her husband.  These I am afraid add nothing to the Applicant’s case or complaints, if anything these events show that alternative arrangements could be made and her family members would be able to render assistance safely as well.

9.  Turning then to the TCAB Decision, the Applicant’s complaint is factually wrong: the TCAB did not come to the decision “based on paper review” – the Applicant attended the oral hearing before the TCAB [9].

10.  It was noted in the TCAB Decision that she had not provided any additional information or material to the Immigration Department in respect of her BOR 2 risk based claim and apart from asserting that her husband was still looking for her and her husband was involved in a drug war, she could not explain the doubts TCAB had on her allegations [13-14].

11.  On the contrary, the TCAB clearly considered all evidence placed before it [3-9] and after careful consideration of the same came to the conclusion that the Applicant’s allegations were not made out and hence the ground of BOR 2 risk was not made out [13-22], the latter of which the TCAB clearly had applied the correct legal principles [10-12].

12.  Further, the TCAB came to the conclusion that both statement protection and internal relocation were available [23-27].

13.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, whether as complained or otherwise, despite rigorous examination and anxious scrutiny.

Conclusion

14.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the 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