GARILLO LYRIA MATIAS v. TORTURE CLAIMS APPEAL BOARD

HCAL 330/2021

[2026] HKCFI 709

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 330 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.      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 11 March 2021, 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 3 March 2021 (“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/2021/HCAL000330_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was unable to make out her claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 20 October 2020 and confirmed the same.

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 she was afraid of her husband (“Alex”) with whom she had domestic issues in the past (and which, on occasions, were violent).  She feared that Alex would harm, ill-treat and/or kill her if she were refouled to the Philippines.

Oral hearing

5.  The applicant requested for an oral hearing and her case was heard on 13 January 2026.

6.  However, when this court asked the applicant to elaborate on the grounds of her intended judicial review, which were stated in her supporting affirmation dated 11 March 2021, the applicant only said that it was about her husband, who had seriously assaulted her and even put a knife at her neck.  However, she confirmed that all these matters had already been presented to the Board.

Grounds for judicial review

7.  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).

8.  The applicant did not advance any ground for her intended judicial review in Form 86.

9.  In pages 2 and 3 of her supporting affirmation, the applicant stated 4 grounds for the intended judicial review, which are summarised as follows:-

(I)     She did not agree with the adjudicator of the Board;

(II)     The Board did not provide any lawyer to help her;

(III)     The Board acted like her opponent and did not want to go to the root of her problem; and

(IV)     The adjudicator arranged an unqualified interpreter.  As she understood English, she knew that the interpreter translated many things wrong.  The adjudicator thus could not understand her problem.

10.  As aforesaid, the applicant did not elaborate on any of the above grounds at the oral hearing on 13 January 2026.  She merely repeated the danger from her husband, which had been assessed by the Board.  However, as the applicant is relying on these grounds, this court will deal with them as discussed below.

Discussion

11.  First of all, the applicant’s danger from her husband had been fully assessed but rejected by the Board.  The applicant stated in ground (I) that she did not agree with the Board without providing any reasons.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.

12.  In ground (II), the applicant complained about the lack of legal assistance, but a lawyer from the Duty Lawyer Service did assist the applicant in the first tier of the screening process when the Director assessed her non-refoulement claim. 

13.  The Court of Appeal has repeatedly emphasised that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37).  Thus, there is no substance in this allegation.

14.  In ground (III), the applicant complained that the Board acted like her opponent, questioned her like her enemy and did not want to go to the root of her problem.

15.  There was in fact nothing wrong for the Board to question the applicant extensively to try to understand her claims better and to assess her credibility and her accounts of the events leading to her claim for non-refoulement protection.  The questions were necessary for the Board to fulfil its duty of finding of facts in relation to the applicant’s claim.  This court finds no fault or unfairness in the Board’s questioning of the applicant at all.

16.  Finally, in ground (IV), the applicant challenged that the Board arranged an unqualified interpreter who translated many things wrong.  She knew that because she understood English herself.

17.  If indeed that was the case, the applicant could have corrected the interpreter at the hearing herself.  She could have told the interpreter what was wrongly interpreted and could even tell the Board directly.  Further, if she was able to understand English, she could actually present her case to the Board by herself and/or supplement what the interpreter translated at the hearing.  Thus, this ground is also unfounded.

18.  It is therefore this court’s finding that none of the grounds put forward by the applicant constitutes a valid ground to challenge the Board’s Decision.

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, despite the fact that the applicant did not advance any valid 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.

21.  In assessing the appeal by the applicant, the Board held an oral hearing on 29 January 2021 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 analyzed the applicant’s evidence with due care.  The Board accepted that the applicant had been physically assaulted by Alex in the past and she still subjectively feared him.  However, the evidence was that Alex had neither approached nor troubled her or her children for many years and had not harmed the applicant since around 2008.

23.  The Board found no evidence to show that:-

(1)   Alex would harm or kill the applicant if she were to return to the Philippines now;

(2)   The applicant faced risk throughout the Philippines;

(3)   The applicant suffered injuries to the required severity; and

(4)   The state of the Philippines was unwilling to help the applicant for a Convention reason.

24.  The Board found that Alex was not a state actor, and there was no element of state acquiescence in the alleged ill-treatment of the applicant.  Her fear of ill-treatment did not fall within any of the Convention categories and did not satisfy the elements of torture as defined in section 37U of the Immigration Ordinance.  

25.  Moreover, the Board found from country of origin information (“COI”) that despite shortcomings of the police in the Philippines, the Philippines government had taken practical steps to maintain public order and safety within its territory and to improve their effectiveness and monitor the conduct of the Philippines police force.  There was also a functioning judiciary in the country.  The Board found that it was not a case that state protection would not be available to the applicant.

26.  Having regard to the finding that the applicant could not make out her case for protection on any of the available grounds under the USM, it was not strictly necessary for the Board to consider the viability of internal relocation for the applicant.  Nevertheless, the Board still considered the viability of internal relocation for the applicant as a matter of caution.  

27.  The Board considered that the applicant’s assertion that Alex would search for her after her return to the Philippines was only speculative and not evidence-based.  The Board found that it would not be unduly harsh and unreasonable for the applicant, being an able-bodied mature female with many years of work experience as a domestic helper overseas, to relocate to other parts of the country to further reduce the chances of Alex being able to locate her.

28.  Thus, the Board concluded that the applicant’s claim for non-refoulement protection had failed on all the applicable grounds under the USM.

29.  The finding of facts, including the assessment of evidence, COI and risk of harm, 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.

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 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. 

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.

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