OLPINDO JANICE GALANO v. TORTURE CLAIMS APPEAL BOARD

HCAL 1303/2024

[2026] HKCFI 2509

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1303 OF 2024

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.   The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 7 August 2024, 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 4 July 2024 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL001303_2024_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had not substantiated a case for non-refoulement protection on any of the available grounds under the Unified Screening Mechanism (“USM”).  Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 27 February 2024 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant named “Torture Claims Appeal Board Non-Refoulement Claims Petition Office” as both the putative respondents and the putative interested parties.

4.  In fact, only the Board should be the putative respondent and the Director should be 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 party at all. 

6.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

7.  The applicant claimed for non-refoulement protection because if refouled to the Philippines, she would be assaulted or even killed by her husband whom the applicant said was addicted to gambling and drugs.

Withdrawal of the Leave Application

8.  By her affirmation dated 2 January 2026, the applicant applied to withdraw the Leave Application and stated that she wanted to go back to her country the Philippines.  However, she did not state that her problems in her country had been resolved or that she would be safe to return. 

9.  There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition.  With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application even though she had previously requested one.

10.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

11.  Thus, it is not right to leave the action at large by granting leave to withdraw to the applicant.  This court will proceed to deal with the merits of the Leave Application.

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 grounds for the intended judicial review in her Form 86, nor in her supporting affirmation dated 7 August 2024.  In her affirmation, she merely reiterated her fear of her husband who was addicted to gambling and drugs, which was just the basis of her non-refoulement claim.

Discussion

14.  First of all, the applicant’s fear of her husband who was addicted to gambling and drugs had been assessed but rejected by the Board.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

15.  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).

16.  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.

17.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 19 June 2024 and the applicant was present.  Thus, the applicant was given the opportunity to present her case to the Board in person.

18.  As can be seen from the Board’s Decision, although the Board considered the accuracy of the applicant’s claim and what she told the Board during the hearing were in doubt, the Board’s Decision was reached based on all the facts the applicant claimed and on the assumption that all the explanations she gave were true and correct.

19.  However, the Board found that the applicant’s case was entirely a domestic dispute between herself and her husband.  There was no indication that the Philippine government or any public official or any person acting in public capacity was involved.  The Board also found that the applicant had never established that she had attained a level of severity of pain or suffering, whether physical or mentally, as required for international protection.  There was no indication that her husband would come to assault or kill her if she returned to the Philippines.  There was also no indication that her husband’s Igorot tribe background would trigger more danger to the applicant.  The applicant had also failed to show that she had a well-founded fear of being persecuted for a Convention reason.

20.  Moreover, the Board found from country of origin information (“COI”) that state protection would be available to the applicant.  The applicant had never sought the police’s assistance in the past.

21.  Thus, the Board concluded that the applicant did not face a real risk of any of the proscribed forms of harm upon refoulement.

22.  Although the Board did not assess the viability of internal relocation for the applicant, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

23.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

24.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board.  The Board was entitled to come to its own conclusion.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

25.  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.

26.  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

27.  For reasons aforesaid, the applicant’s application to withdraw the Leave Application is refused and 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