DEPETILLA EILLEN MACABODBOD v. TORTURE CLAIMS APPEAL BOARD

HCAL 2167/2020

[2025] HKCFI 5377

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2167 OF 2020

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” and the name of the putative interested party be amended to “Director of Immigration”.

2.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.  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 28 October 2020, 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 18 June 2020 (“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/2020/HCAL002167_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s application for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 19 November 2018.

Amendments

3.  In Form 86, the applicant named the Board and Immigration Department as both the putative respondents and the putative interested parties, when only the Board should be the putative respondent and the Director should be the putative interested party.

4.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

5.  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.

6.  In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, she might be killed by a man called Sab Sanullah (“Sab”) as she refused to marry him, by her father for refusing to marry Sab and by those who killed her late husband Roderick as she was the sole witness of the murder. Further, she might be harmed by the Philippines Government for her failure to return a grenade and a M16 rifle upon Roderick’s death.

Late application

7.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

8.  However, the applicant filed Form 86 on 28 October 2020, which was more than 4 months after the Board’s Decision (made on 18 June 2020). The applicant was hence late for more than 1 month in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

9.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

10.  The applicant explained the delay in making the Leave Application by saying that she did not receive the Board’s Decision at all and even up to the time of the oral hearing before this court on 21 October 2025, she still did not have a copy of the Board’s Decision. When this court asked her why then she could attach a copy of the Board’s Decision to her supporting affidavit dated 28 October 2020, the applicant simply could not offer any explanation.

11.  Although the delay of more than 1 month is not very substantial, the explanation given by the applicant is clearly not satisfactory. More importantly, as discussed below, there is no merits of the intended judicial review at all. Thus, this court is not prepared to extend the time for the applicant to file the Leave Application. The Leave Application can be dismissed on the ground of being made out of time alone.

12.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

Oral hearing and withdrawal of the Leave Application

13.  Towards the end of the oral hearing before this court on 21 October 2025, the applicant applied to withdraw the Leave Application, and she said that the situation in the Philippines was okay and it would be safe for her to return.

14.  Further, after the hearing, the Director informed this court by way of a letter dated 31 October 2025 that the applicant had written a letter dated 24 October 2025 addressed to the Registrar of the High Court to apply to withdraw the Leave Application. The applicant confirmed in the said letter that her issues in her home country had been resolved and she could return home.

15.  There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition. With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.

16.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

17.  Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant. This court will proceed to determine the merits of the Leave Application.

Grounds for judicial review

18.  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).

19.  The applicant did not advance any grounds for the intended judicial review in Form 86, nor in her supporting affidavit. She merely stated in the affidavit that she would like to reject and review the Board’s Decision as they disregarded her dangerous situation.

Discussion

20.  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).

21.  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.

22.  The applicant was afforded an oral hearing before the Board on 24 June 2019 and the applicant was present. Thus, the applicant did have the opportunity to present her case to the Board in person.

23.  As can be seen from paragraphs 18(a) to (h) of the Board’s Decision, the Board found numerous aspects of the applicant’s evidence incredible, exaggerated, inherently inconsistent or simply defied logic.

24.  The Board was not convinced that Sab had the motive to harm or kill the applicant. The applicant’s claim that her father would kill her also defied logic. The Board further refused to accept that the applicant was at risk from people who killed Roderick and that the Philippines Government would seek to harm or kill her.

25.  The Board also considered each of the applicable grounds under the USM separately and found that the applicant failed to establish any of them.

26.  The Board further found that any risk of the applicant being harmed by Sab, her father and/or the people who killed Roderick on her return could be reduced, if not negated by protection from the local authorities. The Board also found that it was not unduly harsh for the applicant to relocate within the Philippines to avoid Sab, her father and/or the people who killed Roderick, should she be fearful of returning to the Lanao del Norte area.

27.  Thus, the applicant’s alleged dangerous situations in the Philippines had all been assessed but rejected by the Board.

28.  The assessment of evidence, country of origin information and risk of harm was primarily within the realm 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 decision.

29.  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.

30.  Thus, there is no merits in the Leave Application at all.

31.  Moreover, as the applicant had confirmed that it would be safe for her to return to her home country, it is clear that she no longer needs non-refoulement protection and the Leave Application serves no practical purpose.

32.  It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).

33.  Even assuming that there were errors of law, procedural unfairness, or irrationality in the Board’s Decision and the case were remitted to the Board for reconsideration, there would simply be no more basis for the applicant to claim non-refoulement protection as it was no longer unsafe for her to return to her own country. The Board should assess the risk of the applicant at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation (see Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743).

34.  It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review.

35.  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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

Conclusion

36.  For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed for being made out of time and devoid of merits.

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