Lofamia Annie Malana v Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 3578/2019

[2025] HKCFI 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3578 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

Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:

1.  Form 86 be amended, naming the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office as the Putative Respondent and 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 Form 86 (“Form 86”) dated 2 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 22 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 7 September 2018 (“the Director’s Decisions”), which rejected her non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

2.  I have amended Form 86 on my own motion, correctly naming the Board as the proposed respondent and the Director as the proposed interested party.

Background

3.  It is unnecessary for me to restate the facts of the present case here. The Applicant’s personal background, her case and claim, including the incidents alleged by her to show that she would be killed by some ‘mysterious’ people in Philippines as she and her late husband had witnessed a murder case, and the immigration and procedural history, etc. were set out in details in the Board’s Decision. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

4.  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), and have therefore refused leave.

5.  To begin with, given the seriousness of the issues involved, it is essential for me to remind myself of the enhanced standard that should be adopted when evaluating the Board’s Decision (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).

6.  The Board had made factual findings concerning the Applicant’s non-refoulement claim after the hearing based on her individual allegations, the risk (or otherwise) of harm, the availability (or otherwise) of state protection and the viability (or otherwise) of internal relocation, etc., while considering all relevant materials, including her personal circumstances and the country of origin, etc. (see Satnam Singh v Director of Immigration & Another [2019] HKCA 433 at §11.1).

7.  The Board, however, was not convinced that the Applicant’s claim was truthful. It believed that she had manufactured her claim in an effort to prolong her stay in Hong Kong. It was not satisfied that her fear of being killed or seriously harmed by mysterious people was genuine and concluded that she would not be at risk of any harm if she returned to Philippines (see §§84-108 of the Board’s Decision). Consequently, her claim for non-refoulement on the grounds of Torture Risk, BOR 3 Risk, BOR 2 Risk and Persecution Risk was rejected.

8.  It is evident, upon rigorous examination and anxious scrutiny of the Board’s Decision, that the Board had correctly set out the burden of proof and standard of proof, the law and key legal principles relating to the Grounds under the USM, and observed a very high standard of fairness.

9.  The Board was the primary decision‑maker, responsible for evaluating the Applicant’s claim and determining the appropriate weight to be given to the evidence. It is the Applicant’s duty to make out her complaint regarding the alleged procedural or public law error committed by the Board. It is not the role of the Court to come to a fresh view on whether she would face any of the prescribed risks of harm. Unless and until she establishes irrationality or such other public law grounds in this case, the role of the Board should not be usurped (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, and Re Masoom Parvez [2018] HKCA 163).

10.  However, the Applicant has not identified any errors of law, procedural unfairness, or irrationality in the decision of the Board. She is unable to demonstrate any grounds for the judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142). There is little use for her to express, in the supporting affirmation, her ‘dissatisfaction’ with the decision of the Board, as the Court would not intervene in adjudication without valid public law grounds. The Applicant should not use the present application as an appeal, or as an avenue to revisit arguments that had already been addressed by the Board. The Applicant is also in breach of her duty to make full and frank disclosure of all the material facts known to her and the potential legal answers to her claim (see Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35).

Conclusion

11.  For these reasons, I make an order that Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 14^th day of May 2025

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