Cubero Marites Sumaoy v. Torture Claims Appeal Board
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HCAL 3408/2019 [2025] HKCFI 4100 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3408 OF 2019
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 18 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 11 November 2019 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board denied the applicant’s claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”), and confirmed the decision of the Director of Immigration (“the Director”) dated 17 September 2018, which rejected the applicant’s non-refoulement claim. Amendments 3.In Form 86, the applicant named both the Board and Immigration Department as the putative respondents and the putative interested parties, when only the Board should be named as the putative respondent and only the Director should be named as the putative interested party. 4.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”. The applicant’s case 5.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. 6.In sum, the applicant claimed for non-refoulement protection since she feared that if returned to the Philippines, she would be subjected to ill-treatment or her life would be at risk because of threats made by (1) Vincente Rule (“Vincente”), a moneylender to whom she owed Philippine Pesos 1.5 million and (2) her husband Raymund Badiang (“Raymund”) who demanded money from her and was a drug addict and a leader/member of a gang called the Tau Gamma group. Oral hearing 7.The applicant requested for an oral hearing of the Leave Application, and her case was heard on 10 July 2025. 8.However, when this court invited her to state the grounds for her intended judicial review, she merely said that it was not safe for her to go home and nothing else. Grounds for judicial review 9.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). 10.The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 18 November 2019. She merely stated in the affirmation that she would like to reject and review the Board’s Decision as they disregarded her dangerous situation. 11.As aforesaid, she did not advance any ground for the Leave Application at the oral hearing either. She only mentioned that it was not safe for her to go home. Discussion 12.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). 13.Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality. 14.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 6 March 2019 and the applicant was present. Thus, the applicant did have a chance to present her case to the Board in person. 15.The Board questioned the applicant for details of her claims but found the applicant’s evidence vague and inconsistent. It found the applicant’s evidence regarding the threats she faced in the Philippines exaggerated and improbable. The applicant had not discharged the burden to prove that there was a real risk that she would be harmed or killed if she was refouled to the Philippines. 16.Regarding the loan and the threat from Vincente, the Board was unwilling to attach any significant credence to the applicant’s evidence both with respect to the dates of the loan and the amount indicated. The fact that the applicant was unable to recall key details of an allegedly substantial loan undermined her credibility. The Board thus found the applicant an unreliable witness. Given the applicant’s poor memory and several inconsistencies, the Board was unwilling to attach credence to her evidence regarding the alleged loans. The Board also found the threats by Vincente improbable given the friendship he shared with the applicant and her evidence that she continued to pay him in 2016 at the time of the alleged threats. 17.Concerning the applicant’s threat from Raymund, while the Board was prepared to attach some credence that he did ask the applicant for money and had assaulted her in the past, the Board found the alleged threat and the reason for it exaggerated. Although the Board was also willing to accept and attach credence that Raymund had a drug addiction, it was not willing to attach any credence to the evidence of his membership or leadership in the Tau Gamma group. 18.The Board had indeed given detailed analysis of the applicant’s claims and its reasons to conclude that the applicant’s allegations of death threats by Vincente and Raymund not credible. 19.While the Board was not persuaded that the applicant faced a risk of ill-treatment or loss of life upon returning to Carmen or Tandag, it nonetheless addressed the availability of state protection to and the viability of internal relocation for the applicant. 20.The Board noted from country of origin information (“COI”) for the Philippines that the Philippines National Police (“PNP”) was ineffective and corrupt and that the criminal justice system was overburdened, slow and ineffective. However, there was also evidence that efforts to reform and professionalize the PNP were continuing, and the PNP was making efforts to prosecute offenders within its ranks. The PNP also had a women and children’s unit which in 2016 maintained 1,918 desks throughout the country to deal with cases of abuse. 21.The Board also noted the applicant’s case that she could not expect to receive help from the police as Raymund had distant relatives who worked at the police station, and that the police did not do anything when she sought help from them in 2011. The Board was minded to state its position that in the event that it had erred in its decision, and the applicant would face a risk of ill-treatment or loss of life if she returned to Carmen or Tandag, the Board accepted that reasonable state protection might not be available due to Raymund’s family connection to the police, and Vincente’s connections and influence among the police. 22.However, if the applicant moved to a larger city such as Surigao, or even larger ones such as Davao, Cebu or Manila, the Board found that she would benefit from a greater array of government and NGO services. In addition, the influence which Vincente or Raymund might have in Carmen or Tandag would be significantly diminished. Depending on the location in which the applicant located and based on COI, the Board was satisfied that some state protection existed which would reduce the level of risk to the applicant. 23.The Board also found that despite the alleged power and influence of Vincente or the alleged leadership role of Raymund in the Tau Gamma group, it would be impossible for any of them to locate the applicant throughout the Philippines, which was a vast country with more than 104 million people. The applicant has a Bachelor Degree in Computer Science, some years of self-employment and employment experience in the Philippines and work experience as a domestic helper abroad. The Board found that it would not be unduly harsh for the applicant to relocate to another area of the Philippines. The Board also found that by relocating, the applicant would almost entirely eliminate any risk from Vincente or Raymund, even in the event that the Board’s conclusion on the evidence was wrong. 24.Thus, the Board had indeed fully assessed the danger of the applicant and found her claim for non-refoulement protection failed on all the applicable grounds under the USM. 25.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 26.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. 27.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 28.For reasons aforesaid, the Leave Application is dismissed. Dated the 9th 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
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Cases cited in this judgment