MIGUEL ELENE ESTOLONIO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 919/2022

[2026] HKCFI 2581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 919 of 2022

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 Form 86 filed on 13 September 2022 (“Form 86”), the Applicant applied for leave to apply for judicial review (“Leave Application”) against the decision of the Torture Claims Appeal Board (“Board”) dated 29 August 2022 (“Board’s Decision”)[1], dismissing the Applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 28 June 2021 (“Director’s Decision”).

2.  The Applicant attended an oral hearing in person for the Leave Application on 2 March 2026.  The Applicant submitted that she wanted to stay in Hong Kong for the sake of her child.

Discussion

3.  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 suffices for me to state my observations after considering the Board’s Decision and the Applicant’s materials adduced.  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.

4.  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. Although the Court will adopt an enhanced standard in scrutinizing the Board’s Decision due to the seriousness of the issue, it should not usurp the role of the Board.  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: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

5.  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 (HCAL 21/2015, 22/12/2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

6.  The Applicant provided the following grounds in Form 86 and her affirmation in support:-

(a)   The Board had unlawfully fettered its discretion by dismissing the Applicant’s appeal basing on her failure to satisfy the necessary requirements (“Ground 1”);

(b)   The Board acted in a procedurally unfair manner in handling the appeal (“Ground 2”);

(c)   The Board’s dismissal of the Applicant’s appeal was unreasonable or irrational, or was a result of procedural errors or unfairness (“Ground 3”);

(d)   The Board failed to meet the greater care and duty owed to a self-represented Applicant (“Ground 4”);

(e)   The Applicant was neither given a fair opportunity to make her oral submissions in an oral hearing, nor was she invited to provide written submissions.  When the Applicant filled in the appeal form, she was only asked to state the grounds of appeal, which would not be counted as an opportunity to reply to the submissions made by the representatives of the Director (“Ground 5”); and

(f)   The Board significantly relied on unofficial news and outdated information concerning the Applicant’s country’s origin (“Ground 6”).

7.  As to Ground 1, it can be disposed of.  If the dismissal of the Applicant’s appeal was based on her failure to fulfill the necessary legal and/or factual requirements, the Board’s dismissal of her case should not be understood as ‘unlawfully fettering its discretion’.  The Applicant has provided no specifics as to how the Board had allegedly fettered its discretion, nor explained why its dismissal of the Applicant’s appeal based on her failure to fulfill the necessary requirements would necessarily amount to any unlawful act.

8.  As to Ground 2 and Ground 3, the Applicant has completely failed to explain how the Board acted in a procedurally unfair manner, and why the dismissal of the Applicant’s appeal was unreasonable, irrational or was a result of procedural error or unfairness.  These are no more than bare allegations.

9.  As to Ground 4, the Applicant did not particularize the duty and the breach.  In light of the conclusion reached in respect of other grounds, the Court is unable to find there was any breach of the greater duty of care owed to the unrepresented Applicant.

10.  As to Ground 5, the Applicant complained that she was not given a fair opportunity to make her oral submissions in an oral hearing. The basis of the Applicant’s complaint is that she could not respond to the Director’s submissions by filling in the appeal form.  However, there is no suggestion that she was disallowed from lodging any written submissions or making any oral submissions before the Board.  With the assistance of an Ilonggo interpreter, the Applicant should be in a position to submit to the Board if she wished to.

11.  As to Ground 6, the Applicant again provides no particulars as to which of the COI relied upon by the Board was untrue or outdated, and she adduced nothing to contradict the COI.  Having regard to the nature of the information, it must contain an element of hearsay.  However, the COI relied was from an official, authoritative and credible source, namely, the Australian Government Department of Foreign Affairs and Trade. The Country Information Report on the Philippines was published in August 2021, which was shortly before the Board’s hearing on 22 October 2021.  The Applicant did not adduce any evidence to contradict the COI relied upon.  There is simply no basis to say that the COI was untrue or otherwise outdated. 

12.  As a whole, the Board’s Decision took into account the evidence available [1-14, 23-39], properly considered Country of Origin information [54-55], applied the correct legal test [15-22, 40-50] and found that the Applicant’s allegations were insufficient to make out any of the applicable grounds [51-53, 56-57, 59-65].  The Board found that the Applicant failed to show that she is entitled to non-refoulement protection in Hong Kong. 

13.  Having considered the Board’s Decision rigorously and anxiously, I do not find any error of law, procedural unfairness or irrationality. The Board’s Decision was comprehensive with adequate reasons provided.  There is also nothing to indicate that the Board failed to take into account any relevant matters, or otherwise reached a decision that it was not entitled to make. Accordingly, there is no reasonably arguable ground for judicial review with any realistic prospect of success.

Conclusion

14.  By reason of the above, the Leave Application 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