ACOSTA MARICEL CACAYAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 857/2023

[2026] HKCFI 4145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 857 of 2023

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

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 2 June 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 24 May 2023 (the “Board’s Decision”).

2.  To ensure that the Board is 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 13 July 2026 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis and history of her claim and the arguments she advanced had been set out in details 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 from the Philippines to Hong Kong to work as a domestic helper. She claims that, in July 2018, she borrowed money from a loanshark known as “Gerome”. The Applicant is unable to repay the loan. She fears that she will be killed or seriously harmed by Gerome if she were to return to the Philippines.

Discussion

5.  The leave application is intended to be a filtering process and elaborate reasons are not necessary, see: Re Zunariyah [2018] HKCA 14 at §23. Hence I shall set out the brief reasons for my decision below.

6.  It is trite that 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 this court 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.

7.  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 (unreported, 22 December 2016) per Chow J (as he was then) at §142. Where a Form 86 contains only general assertions without particulars as to underlying facts or matters upon which the Board’s Decision is said to be erroneous, such assertions are not effective grounds to support a judicial review, see: Re Haider Khalil [2021] HKCA 223 at §16.

8.  In her affidavit in support, apart from repeating her claim, the Applicant advanced a number of general allegations claiming that:-

(1)  The Board did not take time or did not think about the danger to her life.

(2)  The Board did not review and did not understand the documents in her mother tongue submitted by the Applicant (the “Documents”). No time was given to the Applicant to arrange for the translation of the Documents.

(3)  The interpreter became impatient and angry with the Applicant during the hearing.

9.  These allegations are wholly unparticularised and devoid of any elaboration. For example, there is no attempt to identify what these Documents are and how she encountered language or translation issues during the hearing before the Board.

10.  At the Hearing, the Applicant said she has nothing else to add.

11.  I have considered the Board’s Decision in detail. I do not find any error of law, procedural unfairness or irrationality. There is nothing to indicate that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters.

12.  Contrary to the Applicant’s allegation:-

(1)  The Board has considered the Applicant’s claim and the evidence in great detail. The Board’s Decision was comprehensive with adequate reasons provided. In particular, the Board was plainly correct in finding that there is no evidence of any real risk of serious harm as the Applicant was never actually harmed by Gerome. As noted by the Board, nothing eventful happened when she returned to the Philippines from Hong Kong between October to November 2019 for holidays (§§31, 33, 36-37). I would add that, if the Applicant truly had a well-founded fear of her life, she would not have returned to her home country for holidays.

(2)  There was no unfairness caused by translation/interpretation issues. As noted in the Board’s Decision (§§6-7), during the hearing, the Board had confirmed with the Applicant and the interpreter that they understood each other and that the Applicant had adopted the documents in the hearing bundle as part of her claim. She also answered questions from the Board.

13.  The Applicant’s contention that she will not have protection in home country or that she cannot relocate to other parts of the country is no more than a bare assertion:-

(1)  On state protection, having considered relevant Country of Origin information, the Board was entitled to form the view that adequate state protection is available in the Philippines notwithstanding the corruption and inefficiency in the legal system.

(2)  On the availability of internal relocation alternatives, it is clear that, the Applicant, as an able-bodied adult with reasonable working experience, should have no difficulty relocating to places such as Cebu or Davao. There is no evidence that Gerome has the capability to pursue her throughout the country so that she would continue to face harm from after relocation.

14.  In such circumstances, the Board’s Decision satisfies the enhanced Wednesbury test and cannot be said to be irrational.

15.  In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

Conclusion

16.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be 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