Santos Mercedita Dela Cruz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 874/2020

[2025] HKCFI 4373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 874 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 Levy:

1.   The Form 86 be amended on the court’s own motion.

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

Observations for the Applicant:

Introduction

1.By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 11 May 2020, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 14 April 2020 (“Board’s Decision”) dismissing the applicant's appeal against two decisions of the Director of Immigration (“Director”) dated 4 February 2019 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000874_2020_files/the_Board's_Decision.pdf

2.In the Form 86, the applicant gave her own residential address as the name of the proposed respondent as well as the interested party.  As the Board should have been the proper respondent and the Director the proper interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.The basis of the applicant’s claim was that she would be harmed or killed by the representatives of a Japanese land development company due to a land dispute as well as the people of the Cooperative Scheme for the losses they suffered caused by the applicant.  The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.As no request for a hearing was made, this court will determine the Leave Application without a hearing: O.53, r.3 (3) of the Rules of the High Court.

Discussion

5.The leave application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  None was provided in the applicant’s Form 86 and the supporting affirmation.

7.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3]  In the present case, whilst the Board accepted the applicant’s account of the events, it however found that the applicant’s past ill-treatment did not meet the requisite minimum level of severity.  The Board found that there was no substantial ground to believe that the applicant would be at risk of harm if refouled.  The Board further found that both state protection and internal relocation would be reasonably available.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

8.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness.  I am satisfied that the Board was entitled to find that there would be no substantial risk of harm. The applicant has not advanced any grounds in support of the Leave Application. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Order

9.The Form 86 be amended on the court’s own motion.

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

Dated the 26^th 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