ELLAR ESTER MACABODBOD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 133/2023

[2026] HKCFI 3129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 133 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 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 1 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 19 January 2023 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 26 October 2021 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 and she attended the same.

Background

3.  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 the man with whom she had been co-habiting for reason of her previous relationship with another man. 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

4.  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).

5.  In both of the Form 86 and her affirmation filed in support of the application, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

6.  At the hearing, when asked if she had anything to add she informed me that she made an application for dependent visa in 2023 and it was still pending, and that she had a child in Hong Kong with whom she wanted to stay. However, these have no relevance to the issues at hand.

7.  Looking at the TCAB Decision, the TCAB bore in mind the correct legal principles in respect of each of the four applicable grounds under the USM [5-14].

8.  It took into consideration the Applicant’s case and evidence, including relevant COI [15-31].

9.  After thoroughly analysing and assessing the above, the TCAB came to the findings and conclusions that none of the grounds was made out [32-49], and further that internal relocation would be available to the Applicant [50-57].

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

Conclusion

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

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