DE LA CRUZ APRILLE ESPOLON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 23 May 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 11 May 2022 (the “Board’s Decision”), which affirmed the decision of the Director of Immigration (the “Director”) dated 8 July 2021 (the “Director’s Decision”).

2.  The Applicant requested an oral hearing for the application. The hearing took place on 5 February 2026 and the Applicant attended in person. At the hearing, the Applicant indicated that she had nothing further to add to the application.

Background

3.  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

4.  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].

5.  In the Form and the supporting affidavit, the Applicant did not provide any ground in support of the application.

6.  In the present case, the Board carefully considered the Applicant’s evidence. A hearing was conducted on 15 December 2021. The Board’s Decision was comprehensive with adequate reasons. 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 [44]-[52] of the Board’s Decision). I am not satisfied 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].

7.  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

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

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