Concepcion Luzviminda Gicoso v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 142/2023

[2026] HKCFI 3130

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 142 of 2023

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 the Applicant being absent in open court;

Order by Deputy High Court Judge (Non-Refoulement Claims) Martin Wong:

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 2 February 2023 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 20 January 2023 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 20 January 2022 in refusing the Applicant’s non-refoulement protection claim. She named the TCAB as the proposed respondent and the DOI as an interested party.

2.The Applicant requested for a hearing but she was absent at the scheduled hearing on 12 May 2026. From the court record, the Notice of Hearing dated 14 April 2026 was sent to an address updated on 9 March through the Immigration Department. Such updated address was, presumably, provided by the Applicant to the Immigration Department in the first place.

3.However, as it turned out, the Notice of Hearing was subsequently returned on mail.

4.Bearing in mind what Barma JA held in Re Abdus Salam [2019] HKCA 1091 at [19], i.e. in an application for leave to bring judicial review proceedings, it is not essential for the applicant to attend an oral hearing, when the applicant fails to turn up at an oral hearing he/she had requested, it should be regarded as a decision to forego the right to the requested oral hearing and the court can deal with the application on paper. Applying the logic, if the Applicant failed to provide an updated address to receive notices from the court, it also signals a disregard of, and indeed a decision to forego, the right of attending an oral hearing.

5.I therefore decided to proceed to deal with this application on paper notwithstanding the Applicant’s absence at the hearing.

Background

6.The Applicant is a national of the Philippines. She seeks non-refoulement protection on the basis that if she was returned, she would be killed by her husband who wanted to divorce her and takeover the 2 matrimonial properties they jointly owned. Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

7.In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case 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. 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, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

8.In her affidavit filed in support of this application, the Applicant raised 10 matters as grounds for judicial review.

9.First, she complained that the TCAB adjudicator did not consider her claim and “directly dismissed” the same. This is clearly not the case: the TCAB held a hearing for the Applicant’s appeal on 16 September 2022, and had clearly taken the time to consider her case and evidence placed before it, as evident from the TCAB Decision itself (see further below).

10.Second, she complained that she had submitted documents that were in her native language, but the adjudicator did not accept them as he could not understand them. This is both factually incorrect and devoid of any particulars. The TCAB had recorded in the TCAB Decision that the Applicant did not produce any documentary evidence [10], and the Applicant did not in her affirmation provide or even state what document she had tried to provide but was rejected.

11.Third, in connection with the second complaint above, the Applicant stated that she requested for more time to translate the documents but her “officer had no time”. This complaint is equally not reflected in the TCAB Decision and not particularised.

12.Fourth and fifth, she complained that the “translator” did not help her and became angry when she did not understand things, and the “interpreter” asked her to not take a long time for interviews. Similarly, there are no particulars as to what she was unable to understand or prevented to raise, or whether it was during the hearing before the TCAB or interviews with the Immigration Department.

13.Sixth to tenth are repetition of her case and plea to say. There is nothing new by way of allegation or evidence in support of her non-refoulement claim.

14.In gist, there is nothing in the above that establishes or supports any grounds for judicial review.

15.Looking at the TCAB Decision, the TCAB took into consideration the Applicant’s case and evidence, including her testimony at the hearing before it [8-15], and bore in mind the correct legal principles in respect of each of the four grounds under the USM [16-38].

16.After thorough analysis and assessment, the TCAB came to the findings and conclusions that none of the allegations or grounds was made out [39-79]. Further, the TCAB found and concluded that internal relocation would be in any event available to the Applicant [80-83].

17.I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

18.For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

Dated the 8^th day of June 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