Buhion Aiza Canoy v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 505/2020

[2025] HKCFI 3423

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 505 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;

Order by Deputy High Court Judge (Non-refoulement Claims) YW Hew:

1.  The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent and only the Director of Immigration as the Putative Interested Party, and by adding “/Non-Refoulement Claims Petition Office” before the words “on my non-refoulement case”;

2.  Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.The Applicant is a national of the Philippines. By a Form 86 filed on 6 April 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 6 April 2020 (“the Affirmation”), the Applicant sought leave to commence a judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 9 January 2020 (“the TCAB Decision”)[1]. The TCAB Decision is exhibited to the Affirmation.

2.The Applicant did not seek an oral hearing of her application. I have dealt with her application on the papers.

3.I have amended the Form 86 of my own motion to properly identify the relevant putative respondent and interested party.

Background

4.The Applicant’s background and factual case underlying her claim for non-refoulement relief, and the immigration and procedural history leading up to the TCAB Decision, are set out in the TCAB Decision, and in the Director’s Decision (defined below, and which was also before the TCAB/NRCPO). For the sake of concision I will not repeat them, but in essence:

a.  The Applicant’s claim for non-refoulement relief stems from a fear that she will be harmed or killed by her ex-boyfriend (“Ex-Boyfriend”);

b.  Her claim for non-refoulement relief was made with the benefit of legal assistance, and was assessed by the Director of Immigration (“the Director”) on the basis of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5], who rejected it as not being substantiated in a decision dated 8 October 2018 (“Director’s Decision”);

c.  The Applicant on 19 December 2018 filed a Notice of Appeal/Petition; and

d.  An oral hearing of the appeal/petition took place before TCAB/NRCPO on 4 April 2019, with the benefit of interpretation. This was attended by the Applicant, who adopted all the information contained in her Non-refoulement Claim Form, the Interview Record, and her Notice of Appeal/Petition as evidence in support of her claim, and was questioned by the TCAB/NRCPO.

5.The TCAB/NRCPO subsequently handed down the TCAB Decision.

Legal Principles

6.An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

7.It is trite that judicial review is not a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886.

8.In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

9.The Form 86 does not identify any grounds of judicial review. The closest the Applicant gets to doing so in the papers is the vague and amorphous allegation in her Affirmation that the TCAB had “disregard[ed] [her] dangerous situation”. It is unclear whether, how, and why the Applicant alleges any procedural unfairness in relation to, any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

10.Nevertheless, and given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard.

11.The TCAB Decision sets out the Applicant’s procedural background, immigration history, and an outline of what happened at the hearing (Paragraphs 1 to 7). It then outlines the relevant principles relating to each of the four types of risk (Paragraphs 1 to 21), and summarises the Applicant’s case (Paragraphs 22 to 27).

12.This is followed by an assessment of the evidence in which the decision-maker, while accepting that her account of events was credible, found that there was no genuine and substantial risk that she would be harmed or killed by her Ex-Boyfriend, and that the Applicant could avail herself of both state protection and internal relocation. The TCAB/NRCPO gave adequate reasons for doing so, referring to the evidence before it and COI referred to within the Director’s Decision (Paragraphs 28 to 37). Accordingly, the TCAB/NRCPO found that the Applicant did not have a valid claim for non-refoulement based on BOR 2 Risk, BOR 3 Risk, Persecution Risk, and Torture Risk, in each case giving relevant and adequate reasons, that she was hence not entitled to non-refoulement protection, and confirmed the Director’s Decision (Paragraphs 38 to 42).

13.Despite my examination and scrutiny I do not see that it is reasonably arguable that there is procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test which vitiates the TCAB Decision. This is particularly so when the assessment of evidence, COI materials, credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO.

14.I am hence not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

15.In the circumstances, I have ordered that the application for leave to apply for judicial review be dismissed.

Dated the 8^th day of August 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