CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1395 of 2025
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BETWEEN
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Reginaldo Cyril David |
Applicant |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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Director of Immigration |
Putative |
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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 K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 11 June 2025 of the Torture Claims Appeal Board (“the Board’s Decision”).
2. The applicant did not ask for a hearing.
The applicant
3. The applicant is a national of the Philippines. She is an illegal immigrant. She lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her husband because she had extra marital affairs with another man in Hong Kong.
4. Details of her claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001395_2025_files/the_Board's_Decision.pdf.
The Director’s Decision
5. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
6. By way of the Notice of Decision dated 1 November 2024 (“Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.
The Board’s Decision
7. The applicant appealed the Director’s Decision to the Board. On 4 February 2025, the Board conducted an oral hearing for her. The applicant had given evidence and answered the Board’s questions.
8. Having considered the evidence, the Board made the findings below.
(1) The Board did not accept her evidence that she did not want to return to the Philippines because she was afraid that her husband would kill her when he sees her. [45]
(2) Her evidence cannot sustain her claim for non-refoulement protection. [46]
(3) State protection will be available to her if she returns to the Philippines. [58]
(4) Internal relocation is viable. [59]
9. For the above reasons, the Board dismissed her appeal and affirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant has filed Form 86 dated 18 June 2025 for leave to apply for judicial review of the Board’s Decision.
11. In support of her application, the applicant raised the grounds below.
(1) The Board had unlawfully fettered its discretion by refusing her appeal.
(2) The adjudicator had acted in a procedural unfair manner in dealing with her appeal: she was not given a chance to make written submissions; it relied on the source of news which is not officially recognized or it is simply hearsay or outdated, resulting in making groundless speculations that it is safe for her to return to the Philippines.
(3) The Board’s Decision was unreasonable and irrational in the public sense or as a result of procedural errors or unfairness: the Board failed to give sufficient weight to documentary evidence and also failed to consider that her memory of the facts was affected by stroke.
(4) The Board failed to meet the greater care and duty owed to a self-represented claimant.
DISCUSSION
12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The 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 Board.”
15. The grounds under paragraph 11 are bare assertions or the applicant’s personal opinions without any evidence in support. The issue of her having stroke was never mentioned in the Board’s Decision. She might give oral submissions to the Board instead of written submissions. The Court of Appeal had held that such grounds are not valid to challenge the Board’s Decision[1].
16. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.
DISPOSITION
17. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 14th day of April 2026
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(Joyce Ooi)
for Registrar, High Court
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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 14/04/2026
Reginaldo Cyril David
Applicant’s ref. no:
Nil. |
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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 14/04/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 24986
Director of Immigration
Putative Interested Party’s ref. no.:
RBCL/798/24
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”