AREVALO VIRGIE UNABIA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1678/2023

[2026] HKCFI 4242

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1678 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

1.  Form 86 be amended on the court’s own motion that the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office be named as the Putative Respondent.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 19 September 2023 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 5 May 2023 (the “Board’s Decision”).

2.  To ensure that the parties are properly named, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 15 July 2026 (the “Hearing”) and the Applicant was absent.

Background

4.  The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. In short, the Applicant came to Hong Kong to work as a domestic helper but has remained here despite the termination of her employment. She claims that, if she returns to the Philippines, she will be seriously harmed or even killed by her husband’s mistress (the “Adversary”).

The Leave Application is out of time

5.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. The Form 86 was filed late for about 6 weeks.

6.  In AW v Director of Immigration and William Lam CACV 63/2015 (unreported, 3 November 2015), the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors is in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.

7.  In the present case, the delay of about 6 weeks is significant. No request for time extension has been made in the Form 86 despite the express requirement to do so. No explanation has been provided for the delay in the Form 86 or the Applicant’s affidavit in support. Her absence at the Hearing is also indicative of a want of prosecution of the Leave Application. On account of these matters, I do not see any reason to allow the application to be filed out of time on my own motion.

8.  In any event, if the Leave Application is bound to fail, no meaningful purpose can be served by granting leave even if I am prepared to assume in favour of the Applicant that she has an innocuous explanation for the delay. Hence, as a matter of expediency, I should focus on the merits of the Leave Application.

Merits

9.  It is trite law that:-

(1)  Determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

(2)  An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142.

10.  The Applicant has failed to put forward sufficiently particularised grounds of review. In her supporting affidavit, the Applicant complained that she encountered language difficulties in the proceedings before the Board. These complaints appeared to be based on a generic template. The Applicant has completely failed to set out the underlying material facts and circumstances in support of the complaints. For example, the Applicant complained that the Board had refused to allow her to submit documents in her native language and did not allow her time to arrange for English translations. However, the Applicant has failed to identify what these documents were and how they relate to her case. Similarly, the Applicant’s complaint about the interpreter being impatient with her is vague and failed to elaborate exactly how she was unfairly prejudiced in the hearing before the Board. As recorded in the Board’s Decision, the Applicant had suitable interpretation and there is no indication that she had any difficulty understanding the Board’s questions (§§15-16).

11.  In any event, I have considered the substance of the Board’s Decision, I am satisfied that the Board had correctly set out the law and key legal principles relating to all applicable grounds; the burden of proof and standard of proof; correctly identified the issues and observed a high standard of fairness, having regard to the following:-

(1)  The Board was entitled to reject the Applicant’s factual account as to the alleged threat from the Adversary as incredible after considering the totality of the evidence, in particular:-

(a)  The Applicant’s evidence is contradictory and unsupported by documents. Despite initially claiming that she received a death threat from the Adversary on Facebook, she was unable to produce the said message. When she was questioned further, she changed her stance and claimed that she had never seen the said Facebook page but heard the threat through friends’ friends. After further questioning by the Board, she then claimed that she did not really know who told her about the threat (§§16b, 19b).

(b)  On the Applicant’s own admission, she had never encountered the Adversary and did not know her personally (§§16c, 19a).

(2)  Hence, there is no basis to interfere with the Board’s finding that there was no risk of threat.

12.  Hence, the Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success. I see no reason to grant a time extension.

Conclusion

13.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed as it was made out of time.

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