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HCAL 986/2022
[2026] HKCFI 3352
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 986 of 2022
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BETWEEN
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Abejuela Mely Combong |
1st Applicant |
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Hussain Mohammad Issa suing by her mother and next friend, Abejuela Mely Combong |
2nd Applicant |
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Hussain Mohammad Najeeb suing by her mother and next friend, Abejuela Mely Combong |
3rd Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
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 (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Levy:
1. The title of the applicants’ Form 86 be amended on the court’s own motion as follows:
“Hussain Mohammad Issa suing by her mother and next friend as the 2nd Applicant” and
“Hussain Mohammad Najeeb suing by her mother and next friend, Abejuela Mely Combong as 3rd the Applicant”
2. The 1st, 2nd and 3rd applicants’ application for leave to apply for judicial review be dismissed.
Background
1. By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 22 September 2022, the applicants applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 18 August 2022 (“Board’s Decision”) dismissing the applicants’ appeal against the decision of the Director of Immigration (“Director”) dated 29 October 2021 rejecting the applicants’ non-refoulement claims based on all applicable grounds. The Board’s Decision is set out in the following hyperlink: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000986_2022_files/the_Board's_Decision.pdf
2. There are 3 applicants. The 1st applicant is the mother of the 2nd applicant and the 3rd applicant, her two minor sons born in Hong Kong respectively on 10 April 2019 and 4 December 2020 with another non-refoulement claimant. An application for judicial review by a child claimant should only proceed in accordance with the regime under O.80 r 2 of the Rules of the High Court with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend): see Fabio Arlyn Timogan v Evan Ruth [2020] HKCA 971at [57]. Despite the non-compliance with the requirement, this court would treat the non-compliance with the rule as a mere irregularity, and proceed to consider the Leave Application: see Fabio (supra). I will order the amendment to the title of the Form 86 regarding the 2nd and 3rd applicants respectively as:
A2: “Hussain Mohammad Issa suing by her mother and next friend, Abejuela Mely Combong”
A3: “Hussain Mohammad Najeeb suing by her mother and next friend, Abejuela Mely Combong”
3. The basis of the applicants’ claims was that, if refouled to Philippines, the applicants would be harmed or killed by the 1st applicant’s husband after he found out that she gave birth to the 2nd and 3rd applicants with another man and that the 2nd applicant used the husband’s surname without his consent. The reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.
4. The applicants have requested for an oral hearing. On 14 May 2026, the Removal Assessment and Litigation (Removal and Deportation) Section (1) of the Immigration Department faxed a letter to the court, informing the court that the applicants would like to withdraw their judicial review application. Enclosed with the said letter was a signed English dated 6 February 2026. The memo was signed by the 1st applicant. In the memo, the 1st applicant stated that she would like to withdraw the Leave Application as her problem at home had been resolved and that she would like to return home.
5. Since it is noted that the memo was only signed by the 1st applicant without any reference to the 2nd and the 3rd applicants, this court directed the applicant to file an affirmation to clarify whether she was also seeking the withdrawal on behalf of the 2nd and 3rd applicants. On 3 June 2026, the applicant filed an affirmation confirming the withdrawal application. By a letter dated 4 June 2026, the applicant filed a hand-written letter confirming that she was making the withdrawal application for herself, and also on behalf of the 2nd and 3rd applicants. In the circumstances, this court will dispose of the Leave Application on paper.
Discussion
6. The leave application operates as a ‘filtering’ process. Hence there is no requirement or expectation to give elaborate reasons for my decision.[1] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.
7. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The applicants’ Form 86 and the supporting affirmation provided no such grounds.
8. As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness, or irrationality.[3] In the present case, the Board assessed the appeals by the 2nd and 3rd applicants separately. After having considered the evidence of the 1st applicant, the Board found that the applicants would not face any risk of harm from the 1st applicant’s husband. It found that the 1st applicant’s claims about the assaults, attempted stabbing and death threats by her husband were not plausible due to the inconsistencies in her evidence. It also found that the past ill-treatment did not meet the requisite level of severity. As for the 2nd and 3rd applicants, since the 1st applicant’s primary allegations about threats from her husband were rejected, the Board also found that they failed to establish the claim on this ground of fear. As for the claim on the ground of discrimination, the Board found that there was no evidence that they would be subjected to worse mistreatment or physical harm due to their status as illegitimate children. The Board further found that the state protection as well as internal relocation would be reasonably available to all 3 applicants. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.
9. Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness. The applicants have not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86 or otherwise. The applicants’ intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[4].
Withdrawal application
10. Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action. This court is satisfied that in the withdrawal application was made by the 1st applicant for herself as well as on behalf of the 2nd and 3rd applicants. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.
Orders
11. The title of the applicants’ Form 86 be amended on the court’s own motion in terms of [2] above.
12. The 1st, 2nd and 3rd applicants’ application for leave to apply for judicial review dismissed.
Dated the 10th day of June 2026
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(Alfred Chan)
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 to the Applicant
on 10/6/2026
Abejuela Mely Combong
Atienza Mohammad Issa Abejuela alias Hussain Mohammad Issa
Hussain Mohammad Najeeb
Applicant’s ref. no:
Nil. |
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Sent 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 10/6/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 19189/21/11/109/F1428
USM 19190/21/11/110/F1429
USM 19191/21/11/111/F1430
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1252/21 (formerly as RBCZ 11229/21), QA T/C 1247/21 (formerly as RBCZ 11230/21), QA T/C 1251/21 (formerly as RBCZ 11231/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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