Del Mundo Lanie Buenaobra v. Torture Claims Appeal Board
|
HCAL 1935/2023 [2026] HKCFI 5774 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1935 OF 2023 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 26 October 2023, 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 13 September 2023 (“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”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 27 June 2023 (“the Director’s Decision”) and affirmed the same, which rejected the applicant’s non-refoulement claim. Amendments 3.In Form 86, the applicant named the Board and Non-refoulement Claims Petition Office as the putative respondents and did not name any putative interested party. 4.In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party. 5.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 6.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and to add “Director of Immigration” as the putative interested party. The applicant’s case 7.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. 8.In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, she would be at risk of harm or even be killed by her husband, who had previously abused her when he was intoxicated, as her husband was jealous and suspicious of her. Oral hearing 9.The applicant requested for an oral hearing of the Leave Application, and her case was heard on 8 October 2026. 10.The applicant confirmed that she wanted to rely on the grounds stated in her written submission that was filed with her supporting affidavit dated 26 October 2023. When this court asked the applicant to elaborate on those grounds, she just said that she needed the support of the Hong Kong government, she could not go back as her husband threatened her and had thrown a knife towards her and hurt her right hand. 11.When this court asked the applicant what was wrong with the Board’s Decision, she merely said that she wanted to stay in Hong Kong, she needed protection and her situation was getting worse as her husband had mental disorder and was addicted to drugs. Grounds for judicial review 12.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). 13.The applicant did not advance any ground for her intended judicial review in Form 86. 14.In her written submission filed with her supporting affidavit dated 26 October 2023, the applicant presented some grounds for her intended judicial review which can be divided into three parts. 15.The first part, which was under the heading “REQUESTED LEAVE BE GRANTED TO THE APPLICANT TO THE JUDICIAL REVIEW AGAINST THE DECISION (HONG KA-HO ARTHUR)”, contained two grounds which can be summarised as follows:-
16.In the second part, the applicant made submissions under two headings, namely “Rider (A)” and “Rider (B)”, the contents of which are summarised as follows:-
17.In the third part, under the heading “ERROR OF LAW/ PROCEDURAL UNFAIRNESS:: THE DIRECTOR OF IMMIGRATION DEPARTMENT & ADJUDICATOR’S ERRED IN LAW BY EXCLUDING OR GIVING NO WEIGHT TO CERTAIN EVIDENCE BECAUSE REGARDED IT AS HEARSAY OR SPECULATION”, the applicant alleged that the adjudicator stated that a great deal of her evidence was her own speculation and gave no weight to it. However, the adjudicator gave no examples of evidence he regarded as the applicant’s speculation. She further stated that the adjudicator erred in law and/or acted in a procedurally unfair manner by wholesale dismissing her evidence based on vague assertions that they amounted to hearsay or speculation. 18.As mentioned, the applicant did not elaborate on any of the aforesaid grounds at the oral hearing before this court. Nevertheless, as the applicant is relying on the grounds contained in her written submission, which are summarised above, this court will deal with them as discussed below. 19.At the oral hearing before this court, the applicant merely reiterated the basis of her non-refoulement claim, namely her danger from her husband. However, she added that her husband had mental disorder, which was an issue that had not been presented to the Board. Discussion 20.This court will first deal with the applicant’s assertions in her written submission. 21.In the first part of the written submission, the applicant challenged in paragraph A that the Board’s Decision was Wednesbury unreasonable or irrational. In paragraph B, the applicant asserted that the Board had failed to give any or had given insufficient reason for dismissing the appeal. 22.However, the applicant did not state how or why the Board’s Decision was unreasonable or irrational. 23.Moreover, contrary to the applicant’s assertion, the Board had laid out in details its material findings of fact in relation to the applicant’s claims in paragraphs 61 to 96 of the Board’s Decision, which formed the basis of the Board’s rejection of the applicant’s claim for non-refoulement protection on all the applicable grounds under the USM. 24.Furthermore, the Board had, on top of its findings and for the sake of completeness, assessed the viability of internal relocation for the applicant in paragraphs 138 to 139 of the Board’s Decision. 25.Thus, there is no merit in the applicant’s accusation that the Board failed to give any or had given insufficient reason for dismissing her appeal. 26.In Rider (A) under the second part of the written submission, the applicant questioned what asylum was and mentioned that it was complicated and the rules changed a lot. She did not know how to win an asylum case or prove herself to be part of a “particular social group”. She also mentioned that she, as a victim of domestic violence, would need an attorney who had experience applying for asylum for domestic violence survivors. 27.However, it is clear from the Board’s Decision that the applicant’s risks on all the applicable grounds, including Persecution Risk[1], under the USM had been fully considered. The Board had made findings and determined that the applicant had failed to show a well-founded fear of persecution for a RC[2] reason and was not entitled to non-refoulement protection in Hong Kong. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review unless there were errors of law, procedural unfairness or irrationality in the Board’s Decision. 28.In Rider (B), the applicant alleged that the Board failed to make sufficient inquiry before finalizing the decision in which the adjudicator failed to inquire from the Philippine authorities. She claimed that the adjudicator refused her appeal without any reason. She had no faith in the authorities in her country. Further, she cited the provisions in section 37ZO of the Immigration Ordinance, Cap 115. 29.The applicant’s lack of faith in the authorities and her belief that the police were corrupt and were unable to help her had been addressed by the Board (see paragraph 39 to 52 of the Board’s Decision). In short, while the Board accepted that the police and authorities in the Philippines were being branded as inefficient and corrupt, the Board was satisfied that the Filipino government had taken and was taking active steps to tackle corruption and ineffectiveness and to raise awareness on human rights within the police. The Board found there was no or no reliable evidence to show that the state of the Philippines was unwilling to help the applicant for a RC reason. 30.The applicant also failed to demonstrate why the Board would need to make inquiry from the Philippine authorities given the circumstances of her own case. Contrary to her accusation that the Board refused her appeal without any reason, the Board had in fact provided full reasons why it found that the applicant was not at a real risk of any of the proscribed forms of harm upon refoulement as aforesaid. 31.The applicant cited section 37ZO of the Immigration Ordinance, but it is completely irrelevant to the applicant’s case, as that section only concerns with limitations on subsequent claim. 32.As to the applicant’s allegation in Rider B that Hong Ka-ho Arthur, ie the member of the Board who assessed the applicant’s appeal/petition, is totally in “mallawa”, this court has gone through different dictionaries, including the Shorter Oxford English Dictionary on Historical Principles, Sixth edition, that the word “mallawa” does not exist. Thus, it is unclear what the applicant was actually saying in the quoted paragraph. 33.In any event, if the applicant was referring to the Board’s finding that medical reports were relevant to its determination of whether the applicant’s past experience qualified as torture or CIDTP[3], this court finds that the member of the Board had assessed the applicant’s case at its highest and accepted her past experience as claimed. However, the Board found, on the applicant’s own evidence, that she did not seek medical treatments on all the occasions of violence and merely treated the injuries herself. The Board did not challenge the applicant for the lack of medical reports to prove her injuries whatsoever. 34.Hence, the second part of the applicant’s written submission does not contain any arguable ground. 35.In the third part of the written submission, under the heading “ERROR OF LAW/PROCEDURAL UNFAIRNESS:; THE DIRECTOR OF IMMIGRATION AND TORTURE CLAIMS APPEAL BOARD (TCAB) ERRED IN LAW BY EXCLUDING OR GIVING NO WEIGHT TO CERTAIN EVIDENCE BECAUSE REGARDED IT AS HEARSAY OR SPECULATION”, the applicant alleged that the adjudicator stated that a great deal of her evidence was her own speculation and gave no weight to it. The adjudicator gave no examples of evidence he regarded as the applicant’s speculation. She further stated that the adjudicator erred in law and/or acted in a procedurally unfair manner by wholesale dismissing her evidence based on vague assertions that they amounted to hearsay or speculation. 36.However, the applicant did not give any particulars regarding these general accusations. 37.Significantly, this court notes that the Board did not reject any of her evidence as speculation or hearsay. In assessing her claimed fear from her husband, the Board had in fact taken her case at its highest, and accepted that she was being regularly harassed by her husband after 2006, when the husband became intoxicated; and that the applicant’s claimed 1st Incident and 2nd Incident did take place. 38.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. 39.Thus, the applicant’s aforesaid general assertions in her written submission cannot amount to any valid ground in challenging the Board’s Decision. 40.With regards to the new claim at the oral hearing before this court that her husband had mental disorder, this court found that the applicant never made such allegation when her case was assessed by the Board. 41.The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage. 42.Thus, the new claim made by the applicant at the oral hearing, namely that her husband had mental disorder, cannot be a valid ground to challenge the Board’s Decision. 43.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). 44.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review. 45.In assessing the appeal by the applicant, the Board held an oral hearing on 30 August 2023. The applicant was present and was given the chance to present her case to the Board in person. 46.As aforesaid, the Board had laid out its detailed material findings of facts regarding the applicant’s claims and evidence in paragraphs 61 to 96 of the Board’s Decision. In gist, the Board had taken the applicant’s case at its highest and accepted the core aspects of her claims about the past events in the Philippines. However, the Board did not accept that the past behaviour of her husband indicated that the applicant would suffer from serious injury or harm should she be refouled to the Philippines. 47.The Board found that the injuries the applicant suffered in the many attacks by her husband in the past were minor, the applicant did not seek medical treatments on any occasions, and treated the injuries by herself. The past acts by the husband were purely personal and private disputes, driven by the fact that he had no money, was jealous of the applicant, consumed drugs and alcohol and as a result could not control himself well. The disputes between the applicant and her husband did not involve state acquiescence and was unrelated to any of the RC reasons. The applicant had never reported any of her husband’s attacks against her to the police or authorities in the Philippines. 48.The Board found it pertinent to note that the husband had in fact apologized to the applicant for his wrong deeds on a few occasions, and that the applicant had accepted his apologies in 2014. The husband in fact knew what he did was wrong, and wanted to make amends with the applicant by apologizing. 49.Considering all the evidence and submission as a whole, the Board found no evidence to support that the husband might escalate his actions and threats upon the applicant or had an intention to harm or kill the applicant. The risk of the applicant being harmed or killed upon her return to the country was assessed to be not well-founded, not real and not foreseeable. 50.Despite its conclusion as summarised above, the Board had also given its full reasons in paragraphs 138 to 139 of the Board’s Decision for the conclusion that it would be attainable for the applicant to earn a living in other areas from her home town in the Philippines to lower her perceived risk of harm from her husband. 51.The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision in dealing with the applicant’s appeal/petition. The applicant’s alleged risks upon refoulement to the Philippines had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision. 52.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. 53.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 54.For reasons aforesaid, the Leave Application is dismissed. Dated the 14th 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
Form CALL-1 [1] Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. [2] The non-refoulement principle under Article 33 of the 1951 Convention relating to Status of Refugees. [3] Cruel, inhuman or degrading treatment or punishment. |
Summaries and metadata are generated from the judgment. Report an error
Cases cited in this judgment