PELLERIN NOEMI SOLANA v. TORTURE CLAIMS APPEAL BOARD

HCAL 414/2026

[2026] HKCFI 4550

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 414 OF 2026

Application for leave to apply for judicial review

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

Following:

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

1.  On this court’s own motion, “Director of Immigration” be added as the putative interested party.

2.  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 12 February 2026 and filed on 16 February 2026, 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 2 December 2025 (“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/2026/HCAL000414_2026_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 19 September 2025 (“the Director’s Decision”), which rejected her non-refoulement claim.

Amendment

3.  The applicant did not name any putative interested party in Form 86, when the Director should be so named.

4.  Thus, this court makes an order on its own motion to add “Director of Immigration” as the putative interested party.

The applicant’s case

5.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

6.  In sum, the applicant claimed for non-refoulement protection because she feared that if refouled to the Philippines, she would be harmed or killed by Ka Erning (“the Enemy”) and his underlings, as her husband had killed the Enemy’s brother. The applicant claimed that the Enemy was a leader of the New People’s Army (“NPA”) at her husband’s hometown and had instructed NPA members to look for the applicant’s husband and his entire family.

Oral hearing

7.  The applicant requested for an oral hearing of the Leave Application and her case was heard on 6 August 2026.

8.  When this court asked the applicant to give the grounds of her intended judicial review, she merely replied that her life was still in danger, she felt safe in Hong Kong, and she could not move to other parts of the Philippines, since she did not have money, and no one, not even her relatives, would help her.

9.  The applicant then apologized for being late in making the Leave Application. However, her Leave Application was actually filed within time.

Grounds for judicial review

10.  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).

11.  In paragraphs 5(a) to (c) of the applicant’s supporting affirmation dated 12 February 2026, the applicant mentioned that:-

(1)  She was a genuine claimant who faced all these dangerous problems, harassment and torture in her country;

(2)  The Director reached the wrong decision in assessing her claim; and

(3)  If she did not run away, she certainly would have been killed by her enemies, and her problems were getting more and more life-threatening day after day.

12.  As aforesaid, the applicant did not elaborate on any of the grounds stated in the said affirmation at the oral hearing, and only said that her life was still in danger and that she could not move to other places in her country.

13.  The applicant also wrote a letter dated 26 May 2026 to this court to support the Leave Application. However, in the said letter, the applicant merely explained why she was late in making the Leave Application, it was hard for her to provide evidence when she was in imprisonment, it would be hard for her to move to another place in the Philippines to start a new life and she would feel the fear for her family when she went back to her country.

Discussion

14.  First of all, the applicant’s danger in her own country had been duly assessed but rejected by the Board. If she intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. Thus, Grounds (1) and (3) as summarised above cannot be valid grounds to challenge the Board’s Decision.

15.  Ground (2) as summarised above was advanced against the Director only. As the Leave Application concerns only the Board’s Decision, which had in fact superseded the Director’s Decision (see Re Moshsin Ali [2018] HKCA 549), this paragraph can simply be ignored.

16.  Thus, none of the grounds that were contained in the applicant’s affirmation dated 12 February 2026 could establish any valid ground to challenge the Board’s Decision.

17.  Likewise, what the applicant said at the oral hearing as well as in the said letter could not amount to any valid ground for the intended judicial review, as her danger had been assessed and rejected by the Board. The applicant had the burden to prove her case and if she failed to provide sufficient evidence to prove her case or her fear, she could not use her failure to say that the Board was wrong.

18.  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).

19.  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.

20.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 26 November 2025 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.

21.  As can be seen from the Board’s Decision, the Board had laid out its consideration of the applicant’s evidence and her claim in paragraphs 12 to 30 of the Board’s Decision, and found that the applicant’s fear of being harmed or killed when refouled to the Philippines was not well founded. The Board also considered all the applicable grounds under the USM as discussed in paragraphs 48 to 59 of the Board’s Decision, and found that the applicant had not made out a case for non-refoulement protection on any of the applicable grounds under the USM.

22.  In gist, the Board found that the applicant’s fear was based on her husband’s killing of the Enemy’s brother. The dispute was plainly private in nature, not related to any Convention reason, and clearly did not involve the acquiescence of the government of the Philippines. The applicant did not play any role in the killing, which happened when she was in Hong Kong. The applicant had never met the Enemy and had not received any oral threat or physical harm from the Enemy. Furthermore, the Enemy had never caused any harm to the applicant’s children. Thus, the Board did not accept that the ill-treatment inflicted on the applicant had attained a minimum level of severity, and found that the alleged incidents could not have caused the applicant any real fear.

23.  The Board had also gone through extensive country of origin information (“COI”) in its assessment of the availability of state protection to the applicant in paragraphs 31 to 47 of the Board’s Decision. The Board found that the Philippine government had endeavoured to combat corruption and taken proper actions to protect the rights of its citizens. Criminal offenders including leaders of NPA had been arrested for different crimes committed. The Philippine government and authorities had offered different measures for assisting women suffering from violence. Official authorities or avenues were available to deal with the applicant’s problems and there was no indication that the applicant would encounter any hardship in acquiring their assistance.

24.  Further, the Board had laid out its full reasons in paragraphs 60 to 66 of the Board’s Decision for the finding that internal relocation was a viable option to the applicant and it was not unduly harsh or unreasonable for her to relocate to other cities to avoid the Enemy if she was returned to the Philippines.

25.  By what the applicant said at the oral hearing and in her said letter, it seems that the applicant was challenging the Board’s finding on internal relocation. However, this court finds nothing wrong or unreasonable for the Board to make the finding that internal relocation was viable to the applicant. In any event, as pointed out by the Board in paragraph 61 of the Board’s Decision, it was in fact not necessary for the Board to deal with the issue of internal relocation, as the applicant had failed to show any persecution risk. Thus, the applicant’s challenge in this regard cannot be sustained.

26.  The finding of facts, including assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

27.  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.

28.  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

29.  For reasons aforesaid, 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