DELA CRUZ LORIE PINEDA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1479/2023

[2026] HKCFI 4240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1479 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 22 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”). As per usual practice 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.

2.  An oral hearing was requested by the Applicant. It took place before me on 15 July 2026 (the “Hearing”) and the Applicant attended in person.

Background

3.  The Applicant’s background, the basis and history of her claim and the arguments she advanced were already 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 to Hong Kong to work as a domestic helper. She has remained here since the premature termination of her employment in November 2018. The Applicant claims that she will be harmed or killed by a drug dealer and/or his associates (the “Adversaries”) who had illicit dealings with the Applicant’s husband who has disappeared. The Applicant claimed that the Adversaries would harm her in order to force her husband to appear.

Discussion

4.  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.

5.  It is trite that determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which this court will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

6.  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.

7.  In the Form 86 and her supporting affidavit, the Applicant did not provide any grounds in support of the Leave Application. At the Hearing, the Applicant confirmed she had nothing more to add. On account of her failure to put forward effective grounds of review, her application should be dismissed.

8.  Notwithstanding the Applicant’s failure to identify any ground of review (let alone a viable ground), I have considered the Board’s Decision in detail. I do not find any error of law, procedural unfairness or irrationality. 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.

9.  The Board’s Decision contained a comprehensive analysis of the evidence. I see no reason to disturb the Board’s finding that the Applicant did not face any real risk of harm if she were to return to the Philippines, in particular that:-

(1)  Despite the alleged threat of the Adversaries to harm the Applicant and her children, the undisputed fact is that the Applicant’s children and other family members have been living in the Philippines all along without suffering any harm (§§51, 56).

(2)  The Applicant’s narrative of the Adversaries who were allegedly gangsters is vague and inconsistent. She provided very few details of the alleged threat and almost all material parts of her evidence were hearsay evidence without any corroboration (§§52-55).

10.  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 a bare assertion not supported by any credible evidence:-

(1)  On state protection, having considered relevant Country of Origin information, the Board was entitled to form the view that adequate state protection is available notwithstanding the existence of shortcomings such as inefficiencies and corruption in the legal system (§§68-80).

(2)  On the availability of internal relocation alternatives, it is clear that, the Applicant, as an able-bodied adult with about 10 years of education and also working experience as a salesperson and domestic helper, should have no difficulty relocating to places such as Manila, Cebu or Caloocan. There is no evidence on the alleged influence of the Adversaries which indicate that she would face any harm after relocation. As noted by the Board, if the Adversaries were unable to locate the Applicant’s husband as she claimed, there is little reason to believe that they would have the capability or the determination to track down the Applicant (§§57-58, 92‑98).

11.  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

12.  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