Gabato Bella Gutib v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 614/2022

[2026] HKCFI 1726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 614 of 2022

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 the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-Refoulement Claims) Calvin Cheuk:

1.  Form 86 be amended, naming the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the putative interested party.

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 14 July 2022 (the “Form”), the Applicant applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 14 June 2022 (the “Board’s Decision”), which affirmed the decision of the Director of Immigration (the “Director”) dated 6 September 2021 (the “Director’s Decision”).

2.The Applicant named both the Board and the Director as the proposed respondents, and the Board and the Immigration Department as the proposed interested parties. Pursuant to Order 20, rule 8 and/or Order 53, rule 3(6) of the Rules of the High Court (Cap 4A), I amend the Form on my own motion to name the Board as the putative respondent and the Director as the putative interested party.

3.The Applicant requested an oral hearing for the application. The hearing took place on 5 February 2026 and the Applicant attended in person.

Background

4.The Applicant’s background, the basis of the Applicant’s claims and the arguments the Applicant advanced were set out in detail in the Board’s Decision. It is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below for reference.[1]

Discussion

5.The applicable legal principles in this area are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decisions of the Board due to the seriousness of the issues at hand, the Court should not usurp the role of the Board. Assessment of the evidence, country of origin information materials, risk of harm, state of 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, procedural unfairness or irrationality in the decision of the Board. See Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].

6.In the Form and the supporting affirmation, the Applicant in summary contended that:

(1)  There was no legal advice or language assistance when the Applicant lodged her appeal to the Board;

(2)  There was no hearing for her appeal to the Board; and

(3)  There was no legal or language assistance to explain the Board’s Decision to her.

7.I do not consider any of the above contentions meritorious.

8.In relation to the contentions at [6(1)] regarding the lack of legal advice when the Applicant lodged her appeal to the Board:

(1)  As held by the Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, at [22], neither the high standard of fairness laid down in Secretary for Security v Sakhevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a claimant under Convention Against Torture (CAT), or a claimant under Articles 2 or 3 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383), or persecution risks must have an absolute right to free legal representation at all stages of the proceedings.

(2)  In the present case, the Applicant already had the benefit of legal representation in presenting her case to the Director. The lack of legal representation in the process before the Board did not render the process unfair in the present case.

9.In relation to the contentions at [6(1)] regarding no language assistance when the Applicant lodged her appeal to the Board:

(1)  As held by the Court of Appeal in Re Khan Md Omar [2019] HKCA 803, at [17], the high standard of fairness required by law would not entail interpretation service being made available to an applicant at all time as she may desire.

(2)  In the present case, all the court documents, including the affirmation filed in support of the leave application, the notice of appeal were written in English. Either the Applicant is herself conversant with the English language or she had access to language assistance of her own if she deemed necessary. Interpreter services were provided at hearings at every stage. Such services were also available at the time when the Applicant was assisted by Duty Lawyer. I therefore do not accept that the alleged lack of language assistance at other times would render the process unfair in the present case.

10.So far as the contentions at [6(2)] is concerned, the Board has explained why it was appropriate to determine the appeal without a hearing, applying, inter alia, ST v Betty Kwan [2014] 4 HKLRD 277 (see [23]-[30] of the Board’s Decision). At the hearing on 5 February 2026, the Court also asked the Applicant if she had suffered any prejudice as a result of the absence of hearing before the Board. The Applicant answered “nothing”.

11.As for the contentions at [6(3)], as I have explained in relation to the contentions at [6(1)], the Applicant does not have an absolute right to free legal representation and interpretation service at all stages of the proceedings. I do not accept that the alleged lack of legal or language assistance to explain the Board’s Decision to her would render the process unfair in the present case.

12.In the present case, the Board carefully considered the Applicant’s evidence. The Board’s Decision was comprehensive with adequate reasons provided. Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, I do not find any errors of law, procedural unfairness or irrationality in the same. The Board was entitled to come to the conclusions it did and reject the Applicant’s claims (see, in particular, [31]-[62] of the Board’s Decision). I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with realistic prospects of success. See: Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676, at [14]-[17].

13.As held in Re Zunariyah [2018] HKCA 14, at [23], leave application operates as a filtering process and there is no requirement or expectation to give elaborated reasons for my decision. It suffices for me to state that in reaching this decision, I have considered all the relevant documents and evidence available to me.

Conclusion

14.For the reasons above, I refuse the Applicant’s leave application and make the orders as set out above.

Dated the 30^th day of March 2026

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