Dojello Penel Quiachon v Torture Claims Appeal Board

HCAL 3352/2019

[2025] HKCFI 4016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3352 OF 2019

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 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 Michael WONG:

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 25 October 2019”.

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 11 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision of the Torture Claims Appeal Board (“the Board”) dated 23 July 2019 and she also applied for extension of time to apply for leave to apply for judicial review.

2.  However, the Board only made one decision dated 25 October 2019 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 23 July 2018 (“the Director’s Decision”). There was no decision made by the Board or the Director dated 23 July 2019.

3.  After some clarification at the oral hearing before this court on 19 June 2025, the applicant confirmed that the Leave Application was filed in respect of the Board’s Decision. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003352_2019_files/the_Board's_Decision.pdf

4.  The Board denied the applicant’s claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”), namely BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] (except Torture Risk[4]). Hence, the Board denied the applicant’s appeal/petition and confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

5.  Previously, the applicant had lodged a torture claim on 14 September 2009, and the Director rejected her claim on 26 June 2013. The Board denied her appeal against the Director’s decision on 24 September 2013. Thus, the applicant’s Torture Risk had already been assessed and finally disposed of, and there was no need for the Board to deal with Torture Risk again in the Board’s Decision.

Amendments

6.  The applicant named the Board/Non-refoulement Claims Petition Office as the putative respondent in Form 86, when the putative respondent should only be the Board.

7.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

8.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.

9.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be “Torture Claims Appeal Board’s decision dated 25 October 2019”. Thus, on this court’s own motion, the decision in respect of which relief is sought is so amended.

The applicant’s case

10.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

11.  In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, her husband, who was a member of the New People’s Army (“NPA”), would harm or kill her, as she had given birth to illegitimate children with her boyfriend in Hong Kong.

Oral hearing

12.  The applicant requested for an oral hearing and her case was heard on 19 June 2025.

13.  At the hearing, apart from confirming that the decision in respect of which relief is sought in the Leave Application is the Board’s Decision, the applicant merely said that she did not want to return to her home country and she has nothing further to add.

Grounds for judicial review

14.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

15.  The applicant did not advance any specific ground for her intended judicial review in Form 86 but stated that she would like to file an appeal against the decision of the Director of Immigration.

16.  In her supporting affidavit dated 11 November 2019, she did not provide any ground either but merely stated that she feared for her life and the lives of her kids if she were to return to the Philippines. Her husband in the Philippines who gave threats to kill her and her kids was the reason that she feared. Her mother who had died was the only person who could control her husband. If she would leave her kids, no one could attend and mend them because they were studying and the father of her kids in Hong Kong was working. So she requested for non-removal from Hong Kong.

17.  As aforesaid, the applicant also failed to advance any ground at the oral hearing before this court.

Discussion

18.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

19.  Thus, despite that the applicant has failed to establish any valid ground as aforesaid, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

20.  In assessing the appeal by the applicant, the Board held an oral hearing on 20 February 2019. The applicant was present and was given the chance to present her case to the Board in person.

21.  After detailed review of the evidence and questioning of the applicant, the Board found that the applicant’s evidence regarding the potential threat from her husband was based on hearsay, which was inherently weak and could not be tested. Given the weakness of the evidence and the passage of 17 years (at the time of the Board’s hearing) since the applicant had any contact with her husband, the Board expected that any anger he might have experienced on learning of the applicant’s pregnancy and her baby by another man back in about 2007/2008 would have diminished significantly.

22.  The last assault by her husband that the applicant experienced happened in 2002, and that involved only slapping and punching. The applicant agreed that given the focus of the NPA, which was on military and industrial or large corporate targets, it would be unlikely that her husband as a part-time member of the NPA could get its assistance in acting against her.

23.  The Board had referred to extensive country of origin information (“COI”) on the Philippines in assessing the availability of state protection for the applicant. Although there was COI which confirmed the Philippines National Police (“PNP”) was ineffective and corrupt, there was also evidence to show that efforts to reform and professionalize the police were continuing. Both the PNP and the Department of Social Welfare and Development maintained help desks to assist survivors of violence against women. There were also avenues for citizens to lodge complaints against public officials.

24.  Based on the COI, the Board found that state protection was available to the applicant should she need it, and might reduce the level of risk to the applicant. Thus, the Board did not find that there was any real risk to the applicant of ill-treatment or loss of life were she to return to the Philippines.

25.  Moreover, it was clear that any threat from her husband was local in nature and the applicant could find relative safety in almost any other part of the Philippines other than the island of Panay, her home island. The applicant had 10 years of education and some experience working as a foreign domestic helper in Hong Kong. The greatest difficulty the applicant might face was whether she should take her daughter with her. The Board found from COI that the applicant would be able to receive some assistance from the government of the Philippines as well as NGOs which would help her and her daughter to establish themselves. Thus, internal relocation was viable for the applicant.

26.  The Board was also minded that the applicant’s partner, son and daughter are all permanent residents of Hong Kong, and the matter of family unity was considered by the Board. Nevertheless, the Board found that family rights are not a bar to refoulement of foreign nationals without a right of abode, even when they have husbands or wives, and children who are permanent residents of Hong Kong (see Comilang, Milagros Tecson & Ors v the Director of Immigration [2019] HKCFA 10).

27.  After due consideration of the law and the evidence, the Board concluded that the applicant failed to establish her claim for non-refoulement protection and denied her appeal/petition.

28.  The applicant’s assertion in her affidavit that she feared for her life and the threat from her husband cannot assist her in the Leave Application. Her alleged danger and risks had been fully and duly assessed by the Board. The Board had also considered the family unity aspect of her non-refoulement claim and made its finding, which was correct in law.

29.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. If the applicant intends to challenge the finding of facts of the Board, it is not permissible in an application for judicial review.

30.  This court notes that the applicant had indicated in Form 86 that she seeks an extension of time to file the Leave Application. The application was filed within 3 months from the Board’s Decision. Thus, no extension of time is needed to file the Leave Application.

31.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

32.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

33.  For reasons aforesaid, the Leave Application is dismissed.

Dated the 2^nd day of September 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