DINULONG MARY CLAIRE TONGDO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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 only the Director of Immigration as the putative interested party.

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

Observations for the Applicant:

Introduction

1.   By a Form 86 filed on 29 November 2022 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 11 November 2022 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 29 July 2021 (the “DOI Decision”).

2.   In the Applicant’s Form 86, the decision to which relief is sought is said to be dated “(5 May 2022) 11 November 2022”.  The TCAB Decision is dated 11 November 2022, and is the relevant decision. 5 May 2022 is the date of the hearing below.

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

4.  The Applicant requested for a hearing of this application and attended the same. When asked, she said that she had nothing to add.

Background

5.  The Applicant is a national of Philippines. In gist, she fears that she will face risk of serious harm or be killed by her husband if she is refouled because she has an extra-marital affair in Hong Kong. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore, not repeat them. Unless otherwise specified, the TCAB’s abbreviations and descriptions are adopted herein.

Discussion

6.  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 is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

7.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and 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 at [14(1)].  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.

8.  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 (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

9.  The Applicant did not state any grounds on which the relief is sought, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.

10.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [38-74]. The TCAB found that the Applicant’s account of the events was not credible and rejected it as untruthful as there was insufficient evidence, discrepancies or inconsistencies in her evidence [37-40]. In particular, the TCAB considered that her fear was not well founded, as her husband had only verbally threatened her and there was no evidence indicating that her husband would implement his verbal threats. He was also not an influential person who could commit crime with impunity [50]. She also confirmed that her husband had never threated or harmed her family [29, 72].  Having considered all material evidence, the TCAB found that in any event, the Applicant would be given sufficient state protection [33, 57-66] and that relocation will be available [89-94].

11.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review 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