SAMARITA EDITHA FABLE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1315/2022

[2026] HKCFI 1641

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1315 OF 2022

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 oral submissions by the Applicant in open court;

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 23 November 2022 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 18 November 2022 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 14 September 2021 (the “DOI Decision”).

2.  The Applicant requested for a hearing of this application. When asked, she said she had nothing to add.

Background

3.  The Applicant is a national of Philippines. In gist, she fears that she will be killed by her husband if she is refouled as both of them wanted custody of their daughter. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them. Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

4.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

5.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and 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 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.  The Applicant’s Form 86 and affidavit in support did not set out grounds on which the relief is sought. However, by a supplemental affidavit dated 20 February 2026, the Applicant sought to adduce submissions in support of her application. As will be addressed below, the grounds are generic or concern matters which have either been fully considered by the TCAB or are irrelevant. In reality, they did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

8.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [29‑49]. It is clear that the TCAB took a careful approach when considering the evidence available. In particular, although the TCAB accepted that her husband had previously assaulted her, it found that there was no evidence to suggest that the Applicant suffered from severe pain and suffering [31]. Importantly, the TCAB found thather husband did not directly threaten her [30], that her husband was an ordinary citizen with no connection with any government [32], and that she could liaise with her husband peacefully about her daughter’s legal custody [38]. In reality, there was no real risk of torture or harm in her claim, particularly when her daughter was already an adult [35-46]. In any event, the TCAB considered that state protection [42] and relocation would be available to her given her working experience overseas [47-54]. In view of the above findings, the Applicant’s grounds of appeal below were bound to fail.

9.  The grounds stated in the supplemental submission, in gist, boils down to general accusations that:

a.  The TCAB failed to determine the case fairly and did not meet the greater care and duty owed.

b.  The TCAB failed to consider that the applicant was never provided with proper legal and language assistance. But the high standard of fairness does not grant the Applicant an absolute right to free legal representation or interpretation services at all stages of the proceedings (Re Zafar Muazam (unrep., CACV 2/2018, 23 March 2018); Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; Re Ahmad Syed Rafiq [2018] HKCA 178 at §22; Akhondo Shakil [2021] HKCA 1616 at §20[10]; Vu Hong Diep v Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office [2023] HKCA 1378; Kamran Khan [2022] HKCFI 1924 at §§21-25 and [2022] HKCA 230 at §§16-17).

c.  Other generic complaints of legal and procedural errors.

10.  As made plain above, the TCAB did not commit these alleged errors. In reality, the Applicant’s evidence was simply insufficient to support her case, and none of the grounds, in truth, challenges the TCAB’s findings in any meaningful ways. The Applicant did not specify any details either to support her alleged accusations.

11.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed.

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