VILAVER BUENALYN DALINA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 540/2022

[2026] HKCFI 1721

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 540 of 2022

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 the documents and oral submissions by the Applicant in open court;

1.  Form 86 be amended, naming the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 27 June 2022 (the “Form”), the Applicant applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 14 June 2022 (the ;“Board’s Decision”), which affirmed the decision of the Director of Immigration (the “Director”) dated 28 October 2021 (the “Director’s Decision”).

2.  The Applicant named the relevant member of the Board as the proposed respondent and the Board as the proposed interested party. Pursuant to Order 20, rule 8 and/or Order 53, rule 3(6) of the Rules of the High Court (Cap 4A), I amend the Form on my own motion to name the Board as the putative respondent and the Director as the putative interested party.

3.  The Applicant requested an oral hearing for the application. The hearing took place on 5 February 2026 and the Applicant attended in person. At the hearing, the Applicant indicated that she had nothing to add to the application.

Background

4.  The Applicant’s background, the basis of the Applicant’s claim and the arguments the Applicant advanced were set out in detail in the Board’s Decision. It is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below for reference.[1]

Discussion

5.  The applicable legal principles in this area are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decisions of the Board due to the seriousness of the issues at hand, the Court should not usurp the role of the Board. Assessment of the evidence, country of origin information materials, risk of harm, state of 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, procedural unfairness or irrationality in the decision of the Board. See Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].

6.  In the Form and the supporting affirmation, the Applicant did not provide any ground in support of her application.

7.  In the present case, the Board carefully considered the Applicant’s evidence. It also explained why it was appropriate to determine the appeal without a hearing, applying, inter alia, ST v Betty Kwan [2014] 4 HKLRD 277 (see [25]-[29] of the Board’s Decision). The Board’s Decision was comprehensive with adequate reasons. Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, I do not find any errors of law, procedural unfairness or irrationality in the same. The Board was entitled to come to the conclusions it did and reject the Applicant’s claims (see, in particular, [30]-[56] of the Board’s Decision). I am not satisfied the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with realistic prospects of success. See Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676, at [14]-[17].

8.  As held in Re Zunariyah [2018] HKCA 14, at [23], leave application operates as a filtering process and there is no requirement or expectation to give elaborated reasons for my decision. It suffices for me to state that in reaching this decision, I have considered all the relevant documents and evidence before me.

Conclusion

9.  For the reasons above, I refuse the Applicant’s leave application and make the orders as set out above.

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