Guiloan Cresencia Cosep v. Torture Claims Appeal Board
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HCAL 2127/2024 [2026] HKCFI 5658 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2127 OF 2024 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 14 November 2024, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 30 October 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 11 April 2024, which rejected the applicant’s non-refoulement claim. Amendment 3.In Form 86, the applicant named the Director as both the putative respondent and the putative interested party, when the Board should be named as the putative respondent, and the Director should only be named as the putative interested party. 4.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”. The applicant’s case 5.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above. 6.In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, she would be ill-treated or even killed by her husband, John Guiloan, and a loan shark called ESPERANZA. Disposal on paper 7.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper. Grounds for judicial review 8.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 9.The applicant did not advance any grounds for judicial review in Form 86. She annexed a 3-page document to her supporting affirmation dated 14 November 2024 which contained her “GROUNDS OF APPEAL”. 10.In the said document, the applicant repeated her problems with her abusive husband, her fear of him and her fear of the loan shark from whom she took out a loan which she was unable to repay. She also challenged the Board’s finding on the availability of state protection and the viability of internal relocation. Discussion 11.First of all, the applicant’s danger from her husband and the loan shark had been duly assessed but rejected by the Board. 12.In relation to the availability of state protection to the applicant, the Board had considered very extensive country of origin information (“COI”) (see paragraphs 76 to 84 of the Board’s Decision), and found the applicant’s belief that she could not obtain protection from the police or assistance from the state not supported by COI. 13.Contrary to the applicant’s assertions, the Board found that the Filipino authorities did take efforts to combat the crimes involving loan sharking and corruption. There were also official channels available to the applicant for reporting her problem with her husband and the loan shark or even lodging complaints against those officials or police who failed to offer assistance or protection to her if she encountered any difficulties with them in the future (see paragraphs 91 to 92 of the Board’s Decision). 14.With regards to internal relocation, the Board had also given full reasons in paragraphs 87 to 90 of the Board’s Decision for its conclusion that given the applicant’s profile, it was not difficult and unreasonable for her to live in other places like Manila or Cebu to avoid the alleged risks from her husband and the loan shark. 15.The finding of facts in relation to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. 16.Thus, what the applicant stated as her grounds of appeal in the document annexed to her supporting affirmation cannot help her at all. 17.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524). 18.Thus, despite the fact that the applicant failed to advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid. 19.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 25 September 2024. The applicant was present and was thus given the chance to present her case to the Board in person. 20.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. Its consideration of the applicant’s evidence and the applicant’s claim against all the applicable grounds under the USM were laid out in paragraphs 54 to 110 of the Board’s Decision, and it is not necessary to repeat the same here. 21.In gist, the Board found that it was merely the applicant’s words alone with no substantial evidence in support that she was harmed by her husband between March 2023 and July 2023. In any event, even if the Board accepted what she said did happen to her, it was only a domestic violence that a wife had disputes with her husband. The applicant could still tolerate his behaviour to live and talk with him thereafter. The Board considered that the risk of harm would not be serious and imminent. There was also no evidence in support of her claim, apart from hearsay evidence from her family members, that her husband was annoyed that she was a source of harassment with the loan shark and that had she failed to settle the debt with the loan shark or remit money to him, he would kill her. The Board found no evidence to show that the applicant was adversely affected by her husband’s behaviour physically and/or mentally. 22.As to the applicant’s dispute with the loan shark, which was a personal and financial dispute, the Board found that the applicant only received calls from the loan shark to chase her for repayment, and she did not answer the calls at all. Nothing eventful happened to her or to her family members in the Philippines. Besides, there was no indication that the loan shark had ever escalated his actions against the applicant or her family members thereafter. 23.As aforesaid, the Board had concluded that reasonable state protection would be available to the applicant to protect her from her husband and the loan shark upon her return to her country. The Board also considered that it was not unreasonable or unduly harsh for the applicant to relocate to another place in the Philippines to lower or negate the risks from her husband and the loan shark. 24.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM. 25.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision. 26.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 27.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused. Conclusion 28.For reasons aforesaid, the Leave Application is dismissed. Dated the 7th day of October 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
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