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HCAL 386/2022
[2025] HKCFI 4854
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 386 of 2022
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Bulaclac Rosalie De Guzman |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 25 May 2022 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 12 April 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 4 June 2021 (the “Notice”), refusing her application for non‑refoulement protection.
2. On 6 December 2023 and again on 23 April 2024, she applied by affirmation to withdraw her leave application (the “withdrawal application”). But on 16 May 2024, she applied by affirmation to withdraw her withdrawal application claiming that her problem in her home country was not solved. Accepting her assertion, on 17 May 2024 this Court refused her withdrawal application and continued to process her leave application.
3. The Applicant had requested an oral hearing. A hearing was scheduled and notice of hearing was sent to her by post on 11 September 2025 to her address as stated in her last affirmation, which had also been confirmed by the Immigration Department to be her last known address. Two attempts had been made by a court staff to contact her on 3 and 6 October 2025 to remind her of the hearing, but the calls were not answered. There is nothing to suggest that she had not received the notice of hearing or had moved. The Court was satisfied that the notice of hearing had been duly served on the Applicant and the Court had tried its best endeavour to bring the hearing to her notice. However, she did not appear at the hearing. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.
The Applicant’s claim
4. The Applicant is a national of the Republic of the Philippines. Her personal background, the factual background leading to the present application, the basis of his claim and the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[1] for reference. In gist, she claims she will be harmed or killed by her husband because she did not help him to repay his debts.
Grounds for judicial review
5. The Applicant did not advance any grounds for judicial review in her Form 86 or supporting affirmation. She did not respond to the Court’s letter dated 24 September 2024 inviting for submission. In the absence of any specific grounds of application, the court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Board’s Decision sought to be reviewed.
Overall scrutiny
6. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence carefully and tested it against common sense, inherent probability and the country of origin information.
7. The Board assessed her claim on the basis of the case as she asserted, except for her allegation about non-availability of state protection and infeasibility of internal relocation. It researched extensively into authoritative and credible country of origin information. Despite some problems about corruption, the Board found adequate state protection by the police and assistance for women by voluntary organisations are available. The problem with the Applicant is that she chose not to take her case up to the local police or authorities. The Board also rejected her claim that internal relocation is not feasible because her husband could find her out anywhere in the Philippines as implausible.
8. Applying the law applicable to non-refoulement protection under the Unified Screening Mechanism (“USM”) to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
9. For the above reasons, the Applicant’s leave application is refused.
Dated the 16th day of October 2025
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( Seline Sze ) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 16/10/2025
Bulaclac Rosalie De Guzman
Applicant’s ref. no: |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 16/10/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 18135/21/6/113/F1294
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 617/21 (Formerly RBCZ 10624/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000386_2022_files/the_Board's_Decision.pdf
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