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HCAL 358/2022
[2026] HKCFI 2634
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 358 OF 2022
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BETWEEN
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Dolindo Janet Mendoza |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative interested party be amended to “Director of Immigration”.
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 and filed on 17 May 2022, 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 5 May 2022 (“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/2022/HCAL000358_2022_files/the_Board's_Decision.pdf
2. The Board found that the applicant was unable to make out her claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 14 July 2021 and confirmed the same, which rejected the applicant’s non-refoulement claim.
Amendment
3. The applicant named both the Director and the Board as the putative interested parties in Form 86, when the Board should only be the putative respondent and the Director should be the putative interested party.
4. Thus, this court makes an order on its own motion to amend the name of the putative interested party to “Director of Immigration”.
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 if refouled to the Philippines, she feared that she might get hurt, harmed or even killed by a person called Juan Hunter (“JH”) in relation to a land dispute in her home area. The applicant claimed that both she and her son had been assaulted by JH and his men after her son found out that JH had been trying to seize the land she owned. She claimed that she reported the matter to the police and the police did follow up on her case. After she filed a land case in the regional court against JH, JH assaulted the applicant’s son when she was in Hong Kong. When she returned to the Philippines, JH threatened her directly that she would die if she did not withdraw the land case.
Disposal on paper
7. The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Thus, the Leave Application is dealt with on paper.
Grounds for judicial review
8. 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).
9. The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affidavit dated 17 May 2022.
Discussion
10. 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).
11. Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.
12. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 17 November 2021. The applicant was thus given the chance to present her case to the Board in person.
13. As can be seen from the Board’s Decision, the Board did not challenge the applicant’s account and accepted the basic facts of the applicant’s case as she presented them. However, the Board noted the evidence was that the applicant received no information at all about her alleged situation since around 2017, including whether JH still wanted her land, the result of the land case (if any) and what had happened to the land over the period.
14. The Board had laid out its reasons in paragraph 42 of the Board’s Decision for the finding that there was no, or no reliable evidence to show, and hence the Board did not accept, that (1) JH would harm or kill the applicant were she to return to the Philippines currently; (2) the applicant faced risk throughout the Philippines; (3) the applicant suffered injuries to the required severity; and (4) the state of the Philippines would be unwilling to help the applicant for a Convention reason.
15. The Board found that the applicant’s dispute with JH was only a personal one. JH was a non-state actor and was not as influential and well-connected as the applicant claimed. The issue of state acquiescence did not arise in the circumstances of the applicant’s case. The applicant was not targeted for a Convention reason.
16. Moreover, although the Board accepted from country of origin information (“COI”) that there were shortcomings as to the conduct and effectiveness of the police in the Philippines, objective COI also showed that the Philippines government had taken practical steps to maintain public order and safety within its territory and to improve their effectiveness and monitor the conduct of the Philippines police force.
17. The police did take action when she reported the assault from JH but the applicant took no further steps to pursue the police case. Further, the applicant had not followed up the land case which she filed against JH. There was no suggestion that the judiciary in the Philippines would not competently resolve her dispute with JH regarding her land. The Board was of the view that state protection would be available and accessible to the applicant.
18. Given its findings that there was no current risk to the applicant and that reasonable state protection would be available to her, the Board did not find it strictly necessary to assess the viability of internal relocation for the applicant. Nevertheless, the Board still did so as a matter of caution.
19. The Board discussed in paragraphs 82 to 90 of the Board’s Decision the viability of internal relocation for the applicant. The Board found that the applicant could relocate without undue hardship to, say, Cebu or Las Pinas in the Philippines based on the available COI, and also because the applicant had not experienced any impediment in either place.
20. Thus, the Board found that the applicant was unable to make out her claims for non-refoulement protection on any of the applicable grounds under the USM.
21. The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
22. 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.
23. 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
24. For reasons aforesaid, the Leave Application is dismissed.
Dated the 6th day of May 2026
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( Gladys LEE )
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/Handed to the applicant/the applicant’s solicitors on: 06/05/2026
Applicant’s ref. no:
Nil |
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Sent/Handed 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: 06/05/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 18333/21/7/133/F1321
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 903/21 (formerly RBCZ 10884/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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