TUTOR ROSALINA SALVACION v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 768/2023

[2026] HKCFI 4081

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 768 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 as follows:-

a.  The Torture Claims Appeal Board / Non-Refoulement Claims Petition Office be named as the Putative Respondent; and

b.  The Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 18 May 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 10 May 2023 (the “Board’s Decision”).

2.  In the Form 86, the Applicant has named the Board as both the proposed respondent and the proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, 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 already been set out in detail in the Board’s Decision. The hyperlink to the Board’s Decision is included below[1] for reference. In short, the Applicant came from the Philippines to Hong Kong on 8 September 2019 as a domestic helper. Her employment contract was prematurely terminated on 21 November 2019 but she has remained in Hong Kong since then. She first raised her non-refoulement claim in October 2020.

5.  The Applicant claimed that she will be killed by her husband (“Husband”) if she returns to her home country because she was accused of having an affair in Hong Kong.

Discussion

6.  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.

7.  The relevant general principles are well established. Judicial review does not operate as a further avenue of appeal. Though in non-refoulement cases, the Court applies a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court must not usurp the role of the Board. Assessment of evidence, country of origin information (“COI”) materials, risk of harm, availability of 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, procedural unfairness or irrationality in the decision of the Board, see: Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

8.  It is trite law that, 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.

9.  In the Form 86, the Applicant did not provide any grounds in support of the Leave Application. In her supporting affirmation, the Applicant merely asserted that her life will be in danger if she returns to the Philippines and asked for permission to stay in Hong Kong.

10.  At the Hearing, the Applicant confirmed she has nothing else to add to her application.

11.  I have considered the Board’s Decision in detail. I do not find any error of law, procedural unfairness or irrationality (even on the enhanced Wednesbury standard). 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.  Having reviewed the Board’s Decision, I am of the view that the Board has considered all evidence meticulously and comprehensive reasons were given for its decision. In my judgment, the Board was plainly correct in finding that there is no evidence of any real risk of serious harm. The Board was entitled to find that the Applicant was not under threat by the Husband as alleged. Despite the Applicant’s claim that threats against her were posted by the Husband on social media, the Applicant was unable to provide any documentary evidence in support. Her evidence as to the alleged threats was also inconsistent and unsatisfactory (§§42-45, 66-70).

13.  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

14.  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