SYLA PAMBID SANTIAGO v. TORTURE CLAIMS APPEAL BOARD

HCAL 396/2021

[2026] HKCFI 1258

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 396 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 10 March 2021”.

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 22 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 10 March 2021 without identifying the decision-maker.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 10 March 2021 (“the Board’s Decision”), which dealt with the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 16 June 2020 (“the Director’s Decision”).

3.  As the applicant had attached a copy of the Board’s Decision to her supporting affidavit dated 22 March 2021, it is clear that the applicant was referring to the Board’s Decision in her Form 86. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000396_2021_files/the_Board's_Decision.pdf

4.  The Board found that the applicant’s appeal/petition failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the Director’s Decision, which rejected the applicant’s claim for non-refoulement protection.

Amendments

5.  The applicant named “USM” as the putative respondent and “TCAB” as the putative interested party in Form 86, when the Board should be the putative respondent and the Director should be the putative interested party.

6.  As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision.

7.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration”, and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 10 March 2021”.

The applicant’s case

8.  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.

9.  In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, she feared being harmed or killed by her husband due to domestic violence over a period of years and her reporting to her husband’s employer that her husband was a drug addict, which led to his dismissal from work.

Oral hearing

10.  The applicant requested for an oral hearing of the Leave Application and her case was heard on 5 February 2026.

11.  When this court asked the applicant for the grounds for her intended judicial review, she replied that she could not go back to the Philippines as her life was at risk. She also said that there was no mistake in the Board’s Decision, but she just wanted to request for her stay in Hong Kong.

Grounds for judicial review

12.  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).

13.  The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affidavit. As aforesaid, she confirmed that there was no mistake in the Board’s Decision at the oral hearing before this court.

Discussion

14.  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).

15.  Thus, despite the fact that the applicant did not advance any 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.

16.  In assessing the appeal by the applicant, the Board held an oral hearing on 23 November 2020. The applicant was present and was given the chance to present her case to the Board in person.

17.  As can be seen from the Board’s Decision, the Board accepted the applicant’s profile for the purposes of assessing any risk to her upon return to the Philippines. The Board accepted that she had been subjected to domestic violence by her husband over a period of years.

18.  However, the Board put to the applicant that she could access various mechanisms in the Philippines set up to protect women facing violence and abuse from their partners. These included mechanisms within the criminal justice system, the health service and non-governmental bodies, as well as court injunctions, shelters and hotlines. The applicant was unaware of them previously but said she would use them now if necessary.

19.  Further, there was specific domestic legislation to curb and penalise violence against women, and that women and children protection desks had been established in nearly all of the police stations throughout the Philippines. Country of origin information (“COI”) also showed that victims of domestic violence could apply for a temporary or permanent protection order against the perpetuator and the Department of Justice had created a specific task force on the protection of women and children which would take forward these matters if requested.

20.  The Board found no reason that the applicant would not be able to make use of the above-mentioned mechanisms if her husband wished further harm against her. The applicant had also accepted as much in her own evidence before the Board. The Board thus concluded that the level of risk to the applicant was below that of a real risk and she would be able to rely on sufficient protection from her husband if necessary.

21.  Since the applicant was very likely to enjoy sufficient protection in the event that her husband would seek to initiate any violence against her upon her return to the Philippines, the Board found no real risk that the applicant would face any proscribed forms of harm under the USM.

22.  Although the Board did not assess the viability of internal relocation for the applicant, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

23.  As it was the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it was not necessary for the Board to further consider internal relocation.

24.  The finding of facts including the assessment of risk and COI was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

25.  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.

26.  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

27.  For reasons aforesaid, the Leave Application is 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