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HCAL 806/2023
[2026] HKCFI 4084
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 806 of 2023
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BETWEEN
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Gingoyon Rowena Vergara |
Applicant |
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and |
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Torture Claims Appeal Board/ |
1st Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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Director of Immigration |
2nd Putative |
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Respondent |
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 (Non-refoulement Claims) Val Chow:
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 1st Putative Respondent; and
b. The Director of Immigration be named as the 2nd Putative Respondent.
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 24 May 2023 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against: (i) the decision of the Director of Immigration (the “Director”) dated 15 August 2022 (the “DOI Decision”); and (ii) the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 18 May 2023 (the “Board’s Decision”) which affirmed the DOI Decision.
2. To ensure the putative respondents are properly named, I make an order to amend the Form 86 accordingly on the court’s own motion.
3. An oral hearing was requested by the Applicant. It took place before me on 13 July 2026 (the “Hearing”) and the Applicant attended in person.
Background
4. The Applicant’s background, the basis and history of her claim and the arguments she advanced can be found in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. In short, the Applicant came to Hong Kong since 2018 to work as a domestic helper. She claimed that her life will be in danger if she returns to the Philippines as she will be seriously harmed or killed by her husband (the “Husband”).
Discussion
5. 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.
6. 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.
7. 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.
8. In the Form 86 and her affidavit in support, the Applicant did not provide any grounds in support of the Leave Application. At the Hearing, the Applicant confirmed that she has nothing else to add. On account of her failure to advance any effective ground of review, the Leave Application should be dismissed.
9. For completeness, I will also consider the substantive merits. As the DOI Decision is effectively superseded by the Board’s Decision, see: Re Moshsin Ali [2018] HKCA 549 at §45, the focus should be on the Board’s Decision.
10. Having considered the Board’s Decision, 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.
11. The Board’s Decision was comprehensive with adequate reasons provided. In particular, the Board was plainly correct in finding that there is no evidence of any real risk of serious harm, given that, taking at its highest, the threat from the Applicant’s husband was only a localised threat of domestic violence. The husband was a drug addict with no connection to any gang or government authorities (§26). There was also no evidence that the Husband had intended to kill or seriously harm her. After suffering from alleged beatings by the Husband, the Applicant was able to recover fully without seeking any medical attention and it was the Husband who bought painkillers for her after the alleged assault. This shows that the Husband never had any actual intention to harm the Applicant (§§27-28).
12. On state protection, having considered relevant Country of Origin information, the Board was entitled to form the view that adequate state protection is available in her home country notwithstanding the existence of certain shortcomings and corruption in the law enforcement (§§31-47).
13. In such circumstances, the Board’s Decision cannot be said to be irrational (even on the enhanced Wednesbury standard).
14. The Applicant’s intended challenge of the Board’s Decision has no realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.
Conclusion
15. In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.
Dated the 24th day of July 2026
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(Klein Tse)
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 24/7/2026
Gingoyon Rowena Vergara
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 24/7/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.: USM 20871
Director of Immigration
2nd Putative Respondent’s ref. no.: QA T/C 696/22 (formerly RBCZ/5000583/22)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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