Valera Analiza Gaddi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1607/2020 [2025] HKCFI 4217 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1607 OF 2020
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord 53 r 3) Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Vincent Lung:
Introduction 1.By a Form 86 filed on 4 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 14 July 2020 (the “TCAB Decision”), which refused her application to make a late filing of the appeal/petition from the decision of the Director of Immigration (“DOI”) dated 15 February 2017. She named the TCAB as the proposed respondent. 2.I amend the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as the putative interested party. 3.The Applicant requested for a hearing of this application but she was absent at the hearing. I shall deal with this application on paper. Background 4.The Applicant is a national of the Philippines. She seeks non-refoulement protection on the basis that she will be killed by her ex-partner and his family if she returns to her home country, given her ex-partner’s long history of domestic violence towards her and his knowledge of her affair with another man in Hong Kong. 5.By letter dated 6 February 2017, the Applicant indicated that she had decided to return to her home country and not to pursue her appeal. The Applicant stated that she wished to withdraw her non-refoulement claim. This led to the decision of the DOI to refuse her non-refoulement claim on 15 February 2017. 6.The Applicant changed her mind by her letter dated 5 July 2017 because her father allegedly informed her that her ex-partner was still threatening to kill her. It was not until 7 November 2019 that the TCAB received the Applicant’s Notice of Appeal (although it was dated 4 January 2019). 7.The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them. Discussion 8.The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant. 9.I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 10.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit. 11.The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision whether in the Form 86 or her affirmation in support. All she stated in her affirmation was that she remained dissatisfied with the TCAB Decision and her life remained in danger. 12.As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [4-25], and by applying the correct legal principles in respect of all four applicable grounds and appeals out of time [26-33], the TCAB held that there were no special circumstances to allow the late filing of the Notice of Appeal [34-45, 48-50, 52-53]. The TCAB also considered the merits of the (intended) appeal but was of the view that they were insufficient to weigh in favour of allowing an extension of time [46-47, 51]. These were conclusions that the TCAB was entitled to come to having regard to the broad discretion conferred. 13.All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed. Dated the 18th 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
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Cases cited in this judgment