LARANANG GENEVIE DAGUYEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 638/2022

[2026] HKCFI 2258

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 638 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

(1)   Form 86 be amended, naming the Director of Immigration as the Putative Interested Party; and

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 20 July 2022 (“Form 86”), the Applicant applied for leave to apply for judicial review (“Leave Application”) against the decision of the Torture Claims Appeal Board (“Board”) dated 7 July 2022 (“Board’s Decision”)[1], dismissing the Applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 3 September 2021 (“Director’s Decision”).

2.  The Applicant attended an oral hearing in person for the Leave Application on 2 March 2026.

3.  I amend the Form 86 on my own motion to name the Director of Immigration as the putative interested party.

Discussion

4.  The Leave Application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It suffices for me to state my observations after considering the Board’s Decision and the Applicant’s materials adduced.  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

5.  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. Although the Court will adopt an enhanced standard in scrutinizing the Board’s Decision due to the seriousness of the issue, it should not usurp the role of the Board.  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22/12/2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.  In Form 86, the Applicant did not provide any grounds in support of the Leave Application.  In the Applicant’s supporting Affirmation, she relied on the following grounds: -

(a)   The Board failed to ‘consider [her] fear’ and properly consider the conditions of the Philippines (“Ground 1”);

(b)   The Board failed to properly assess the harm that would be caused to her by the gangster and the Sigue Sigue Commando (“Commando”) (“Ground 2”); and

(c)   The Board did not consider that the state authority would not be able to protect her from the gangster and Commando (“Ground 3”).

8.  As to these grounds:-

(a)   For Ground 1 and Ground 3, the Board had clearly considered the conditions of the Philippines and whether the state would be able to protect her.  The Board took into account (i) country of origin information (“COI”) as stated in [40-42, 44]; (ii) that whilst some of the COI corroborated with the Applicant’s assertion regarding state protection in the Philippines, objective COI indicated that the Philippine police and authorities could provide protection to the public and the Philippine government had taken practical steps to improve its effectiveness; (iii) that there were alternative places of safety in the Philippines for the Applicant where she can avoid the alleged risk of violence or threats from the gangster and Commando without undue hardship; and

(b)   For Ground 2, the Board had properly assessed the potential harm to be caused to the Applicant by the gangster and Commando if she is refouled. The Board took into account that (i) the gangster and Commando never physically harmed the Applicant [38]; (ii) ever since the gangster was taken to the Barangay Office, the Applicant did not encounter the gangster any more in the Philippines [31]; (iii) the gangster and Commando could have killed or at least harmed the Applicant in many instances if they had the real intention to do so [38].  The Board therefore came to the view that the gangster and Commando had no real intention to seriously harm or kill the Applicant.

9.  The Board’s Decision took into account the evidence available [23-36], properly considered Country of Origin information [41-42, 44], applied the correct legal test [9-22] and found that the Applicant’s allegations were insufficient to make out any of the applicable grounds [38-48].  The Board found that the Applicant failed to show that she is entitled to non-refoulement protection in Hong Kong.

10.  Having considered the Board’s Decision rigorously and anxiously, I do not find any error of law, procedural unfairness or irrationality.  The Board’s Decision was comprehensive with adequate reasons provided.  There is also nothing to indicate that the Board failed to take into account any relevant matters, or otherwise reached a decision that it was not entitled to make. Accordingly, there is no reasonably arguable ground for judicial review with any realistic prospect of success.

Conclusion

11.  By reason of the above, the Leave Application is 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