Santos Celestina Gonzaga v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1024/2023

[2026] HKCFI 2308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1024 of 2023

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) YW Hew:

1.   The Form 86 is amended on the Court’s own motion, naming only the Director of Immigration as the Putative Interested Party, and substituting “15 October 2019” in place of “16-Oct-2019”; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.The Applicant is a citizen of the Philippines.  By a Form 86 filed on 26 June 2023 (“Form 86”), which was accompanied by a supporting Affidavit filed on 26 June 2023 (“the Affidavit”), she sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 15 October 2019 (“the TCAB Decision”)[1] but erroneously said in the Form 86 to have been made on 16 October 2019.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.As the Applicant has not sought an oral hearing of her application, I have dealt with such on the papers.

3.I have amended the Form 86 of my own motion to reflect the identity of the proper Putative Interested Party, and the date of the TCAB Decision.

Background

4.This is set out in the TCAB Decision.  While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)   The Applicant claimed non-refoulement relief on the basis that if she were refouled to the Philippines, she would be harmed or killed by a creditor of hers, or the creditor’s family members;

(2)   The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], BOR 2 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 11 July 2018 (“Director’s Decision”);

(3)   The Applicant appealed/petitioned to the TCAB/NRCPO. The latter notified the Applicant of, and she attended and gave evidence at, a hearing of her appeal/petition on 18 February 2019; and

(4)   The decision-maker issued the TCAB Decision on 15 October 2019, in which he decided that the Applicant was not entitled to non-refoulement relief on the applicable grounds, denied her appeal/petition, and confirmed the Director’s Decision.

Legal Principles

5.An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2012, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the 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/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

7.In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

8.Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

(1)   The failure to apply within 3 months constitutes “undue delay”.  To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time.  In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[6] (iii) the merits of the substantive application[7] (iv) prejudice, and (v) whether the application raises questions of general public importance;

(2)   Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review.  The refusal of an extension of time is part and parcel of a refusal to grant leave to apply.  It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

(3)   If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given.  While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test.  Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

(4)   Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application.  That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.  

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai.  See also Re Hariatiningsih [2021] HKCFI 1194 at §§12‑13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

9.The application was filed more than 3 months after the TCAB Decision, and more than 41 months out of time.  I do not see any good reason to extend time for the Applicant’s application for leave to apply for judicial review.  I therefore refuse to grant such an extension of time, and I dismiss the application for leave to apply for judicial review.  This is for the following reasons.

10.Firstly, and as to the merits of her application, the Form 86 and the Affidavit contain no grounds of judicial review. There are therefore no properly particularised allegations of any procedural unfairness in relation to, of any error of law in, or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

11.Nevertheless, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

12.Having done so, I do not see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision, and that justifies the grant of leave.  This is especially so as to the assessment, reasoning, and findings regarding the Applicant’s evidence, credibility, state protection, risk of harm, and internal relocation, which are matters primarily within the province of the decision-making body. In particular, I see no reasonably arguable public law basis to vitiate:

(1)   The decision-maker’s analysis and findings as to the Applicant’s evidence, including that she was not a credible witness, and his rejection (on the evidence before him) of the Applicant’s claim that she had borrowed money as alleged, and had had threats made against her; and

(2)   The decision-maker’s analysis and findings that in any event, there was no Refugee Convention Reason in relation to Persecution Risk, and that both state protection and internal relocation were available.

13.I hence do not discern any public law basis to vitiate the decision-maker’s consequent conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

14.I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

15.Secondly, there is substantial undue delay in this case as the leave application was filed over 41 months out of time. Despite this, and notwithstanding the Applicant’s duty of full and frank disclosure, no explanation was given in the documents for this delay.

16.Thirdly, I do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event.  Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent.  Indeed, even if there were an acceptable explanation for the delay, given the other matters herein I would still refuse to grant leave.

Conclusion

17.In the circumstances, I have made the orders above, including that the application for leave to apply for judicial review be dismissed.

Dated the 28^th day of April 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