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HCAL 708/2023
[2026] HKCFI 4538
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 708 OF 2023
BETWEEN
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Calica Daisy Tejero |
Applicant |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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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. 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 15 May 2023, 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 9 May 2023 (“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/2023/HCAL000708_2023_files/the_Board's_Decision.pdf
2. The Board found that the applicant had not established a claim for non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 11 August 2022, which rejected the applicant’s non-refoulement claim.
The applicant’s case
3. 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.
4. In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, she would be harmed or killed by her cousin Ramil due to a land dispute.
Oral hearing
5. The applicant requested for an oral hearing of the Leave Application, and her case was heard on 6 August 2026.
6. The applicant confirmed that she would rely on the grounds stated in her supporting affidavit dated 15 May 2023 for her intended judicial review. When this court asked the applicant to elaborate on the said grounds, she merely reiterated the basis for the non-refoulement claim, namely that there was a property dispute between her cousin and her, and the cousin assaulted and hurt her. The applicant also said that her mother told her that it was not safe for her to return as her cousin would kill her.
7. When this court asked the applicant what was wrong with the Board’s Decision, she just said that she was safe in Hong Kong, she was suffering from diabetes and had been receiving medical treatment for 3 months, she needed to attend hospital for blood testing, she could not afford to pay for medication in the Philippines and if she was sent back there, she requested that she would be given medication.
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 identify any ground for the intended judicial review in Form 86.
10. In her supporting affidavit dated 15 May 2023, the applicant advanced 6 grounds under the heading “GROUNDS FOR JUDICIAL REVIEW”. The grounds are summarised as follows:-
(1) The adjudicator did not consider her claim;
(2) The adjudicator did not accept her documents as the documents were in her mother language;
(3) The officer refused to give her time to translate the documents because he had no time;
(4) The translator did not help her at all and became angry if the applicant did not understand;
(5) The interpreter asked her not to take long time for interview as he had another job; and
(6) She asked the court to help her and save her life.
11. As aforesaid, at the oral hearing, the applicant only reiterated her reasons for claiming non-refoulement protection, she has medical issues and could not pay for medication in the Philippines.
Discussion
12. First of all, the applicant’s danger in her home country had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
13. Her medical issues were not presented before the Board for assessment. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.
14. Thus, the applicant cannot rely on matters not raised before the Board as her grounds for judicial review. This court will not take on the role of the primary decision-makers and re-assess her non-refoulement claim.
15. As to the matters that were stated as “GROUNDS FOR JUDICIAL REVIEW” in her supporting affidavit, all the grounds (except ground (6) which is not a ground at all) were asserted without any specificity. Many applicants in similar applications used them like a template without any regard to their own cases. The applicant is no exception.
16. She did not state: (1) how the adjudicator did not consider her claim; (2) which part(s) of her claim was not considered; (3) what documents she intended to submit were rejected as they were not translated; (4) how the interpreter or translator’s attitude had prejudiced her; and (5) what she wanted to tell the Board was not presented because of the attitude of the interpreter or translator.
17. The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.
18. Thus, the general assertions that were contained in the applicant’s affidavit cannot help her at all.
19. 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).
20. Thus, the applicant cannot ask this court to re-assess her non-refoulement claim. Nevertheless, 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.
21. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 21 February 2023, and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.
22. As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection.
23. The Board had laid out its assessment of the applicant’s claims in paragraphs 43 to 51 of the Board’s Decision, and it is not necessary to repeat the same here.
24. In gist, the Board was willing to accept the applicant’s central claim, namely that she and her siblings were entitled to one-third share of the land that was owned by their deceased paternal grandfather and that their cousin, Ramil, did not want them to access their one-third share of the land. The Board was also prepared to accept that Ramil had threatened to harm or kill the applicant if she tried to access her share of the land and that he attempted on one occasion to physically assault the applicant.
25. However, the Board noted that Ramil took no further action against the applicant, and did not take any action against any of the applicant’s siblings who were also entitled to a share of the land. There was also no evidence to indicate that Ramil had made threats of harm or harmed any of the children of the applicant’s aunt Maria, who had built on their share of the land.
26. In these circumstances, the Board found that the chance of the applicant being harmed or killed by Ramil if she returned to her home in Casilagan was not substantial. Rather, on the evidence, the Board was satisfied that the chance of Ramil acting on his threats was remote.
27. Further, the Board had laid out its full reasons in paragraphs 52 to 57 of the Board’s Decision for finding that the applicant was able to relocate internally within the Philippines without undue difficulty and to live safely.
28. Thus, the Board found that the applicant had no real risk of any of the proscribed forms of harm from her cousin Ramil upon her return to the Philippines.
29. The finding of facts, including the assessment of evidence, country of origin information 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.
30. 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 error 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.
31. 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
32. For reasons aforesaid, the Leave Application is dismissed.
Dated the 12th day of August 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 his 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: 12/08/2026
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: 12/08/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 20833
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 695/22 (formerly RBCZ 5000561/22)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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