DARANDA MARY JOY VENTURA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1501/2023

[2026] HKCFI 4241

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1501 of 2023

Application for Leave to Apply for Judicial Review

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

Following;

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 24 August 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 17 August 2023 (the “Board’s Decision”).

2.  In the Form 86, the Applicant has named the Board as both a proposed respondent and the proposed interested party and the Director of Immigration (the “Director”) as a proposed respondent. As it is trite that the Board should be the proposed respondent whereas 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 15 July 2026 (the “Hearing”) and the Applicant was absent.

Background

4.  The Applicant’s background, the basis and history of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and it is unnecessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. To state her case briefly, the Applicant came to Hong Kong to work as a domestic helper since 2019. She remained in Hong Kong despite the termination of her employment. If she were to return to her home country, she fears that she will be harmed by a moneylender and his associates (the “Adversaries”) because her mother (the “Mother”) had taken out a loan from the Adversaries and the Mother has defaulted on the loan.

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.  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.

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.  The Applicant has failed to put forward any ground of review in her Form 86 and affidavit in support. She also failed to attend the Hearing which demonstrated a want of prosecution of the Leave Application. On account of these matters alone, the Leave Application ought to be dismissed.

9.  For completeness, I have considered the matter substantively. Having examined the Board’s Decision, I do not find any error of law, procedural unfairness or irrationality which can give rise to a reasonably arguable case for review. 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.

10.  I am satisfied that the Board has given adequate reasons for its decision and has conducted a meticulous analysis of the evidence put before it. Amongst others, the Board was plainly correct in finding that there is no evidence of any real risk of serious harm. The Applicant’s case does not make any sense. It was the Mother who borrowed money from the Adversaries. If the Adversaries intended to resort to violent means, they would have harmed the Mother and/or her other family members. The Adversaries have not done so despite having ample opportunities (§§66-72).

11.  The Applicant’s contention that she will not have protection in her home country or that she cannot relocate to other parts of the country is unjustified:-

(1)  On state protection, the Applicant has never made any attempt to seek police assistance. Having considered the pertinent COI, the Board was entitled to form the view that adequate state protection is available  notwithstanding the existence of corruption and inefficiency in the legal system (§§88-99).

(2)  On the availability of internal relocation alternatives, it is clear that, the Applicant, as an able-bodied adult with reasonable education and working experience, should have no difficulty relocating to large cities such as Manila, Davao or Cebu. There is no evidence that the Adversaries would have the means and determination to pursue her throughout the Philippines, which is, after all, a large country.

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

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