Lotho Ofelia Canoy v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3186/2019

[2025] HKCFI 3129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3186 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 9 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant requested an oral hearing. She appeared before the Court on 4 June 2025.

The applicant

3.The applicant is a national of Philippines. On 4 October 2017, the applicant arrived as a visitor, but she did not depart and overstayed since 19 October 2017. The applicant surrendered to police on 16 November 2017 and in due course, lodged her non-refoulement claim.

4.The applicant’s claim was based on her fear of being harmed or killed by the police as her ex-boyfriend had alleged that the applicant was a drug pusher.

5.According to the applicant, her ex-boyfriend had a Marijuana addiction but as the situation had been getting worse and he consumed a drug named Shabu/Ice, she reported the situation to police. Her ex-boyfriend then spread rumours that she was a drug pusher and she believes there are real threats to her life by the police. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 13 November 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed her claim. In summary, the Director found that there were no substantial grounds for believing that she was in danger of being harmed or killed by the police or ex-boyfriend; that the possible threats from her ex-boyfriend was not an indication that he had any intention to inflict serious harm or even to kill the applicant, and the applicant’s behaviours did not support that she was in a dire situation and subjected to imminent risk [13-15]; that state protection was available [17-23]; and that internal relocation alternatives were available and reasonable [24-25].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 8 May 2019, the Board conducted an oral hearing for her appeal, during which the Board took evidence in relation to the applicant’s claims [8].

9.Having considered the evidence, the Board found the evidence given by the applicant was unconvincing in that the applicant had filed any complaint against her ex-boyfriend for his drug abuse, or that he had any connections with the police [9-12]. In any event, the Board found that state protection and internal relocation were available options [18]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds. It therefore dismissed her appeal and confirmed the Director’s Decision. See the Board’s Decision through the hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003186_2019_files/the_Board's_Decision.pdf

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 28 October 2019 for leave to apply for judicial review of the Board’s Decision. . The applicant included grounds which are summarized as follows: the Director’s and Board’s Decisions were not reasonable and not fair; there was a failure to consider state acquiescence; excessive reliance on country of origin information; and the Director’s failure to attain a high standard of fairness.

11.In the applicant’s affirmation in support of her application, the applicant exhibited the Director’s Decision and she did not elaborate further on her grounds referred above.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, she said that the Board was no wrong in its decisions.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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 Board.”

15.In view of her submissions before the Court, those grounds under paragraph 10 have become insignificant and they are not valid to challenge the Board’s Decision.

16.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

17.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 26^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