|
HCAL 341/2026
[2026] HKCFI 2728
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 341 OF 2026
|
BETWEEN
|
| |
Dangiw Juhren Dumalili |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board |
Putative |
| |
|
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
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 6 February 2026, 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 24 December 2025 (“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/2026/HCAL000341_2026_files/the_Board's_Decision.pdf
2. The Board found that the applicant had not made out a case for non-refoulement protection in Hong Kong on any the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 13 November 2025 and confirmed the same, which rejected the applicant’s non-refoulement claim.
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 if refouled to the Philippines, she would be harmed or even killed by her parents due to her refusal to the arranged marriage and becoming pregnant out of wedlock.
Disposal on paper
5. The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.
Grounds for judicial review
6. 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).
7. The applicant did not advance any ground for her intended judicial review in Form 86. However, the applicant annexed a document, which she described as “SELF WRITTEN GROUNDS”, to her supporting affidavit/affirmation dated 6 February 2026.
8. In the said document, the applicant mentioned that her life was in danger in her country, she had given birth to a baby before she surrendered herself to the Immigration Department and she did not want to be separated with her child. If she was returned to the Philippines, she did not have anyone who could help her and provide permanent accommodation to her. Although she had almost 9.5 years of work experience, there were less job opportunities in her country so it would be difficult for her to find a permanent job. Her parents had not done anything to her yet because they knew she was in Hong Kong. The applicant asked to be given a chance to remain in Hong Kong.
Discussion
9. First of all, none of the matters that were mentioned in the applicant’s self-written grounds can constitute any valid ground for challenging the Board’s Decision.
10. The applicant’s alleged danger from her parents in her country had been duly assessed but rejected by the Board. Moreover, her concerns about internal relocation had been fully addressed by the Board in the Board’s assessment on the viability of internal relocation for the applicant. These are all findings of facts that were within the exclusive ambit of the Board in the assessment of the applicant’s case. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
11. Although it is understandable that the applicant does not want to be separated from her child who is very young, family unity rights are not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong (see Comilang & Ors v Director of Immigration [2019] HKCFA 10). Thus, the applicant’s wish to remain in Hong Kong to take care of her child is not a ground to challenge the Board’s Decision either.
12. 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).
13. Thus, the applicant cannot ask this court to re-assess her non-refoulement claim. Nevertheless, 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.
14. In assessing the applicant’s appeal/petition, the Board arranged an oral hearing on 22 December 2025. The applicant was present and was thus given the opportunity to present her case to the Board in person.
15. The Board had laid out its analysis and findings on the risk of harm on the applicant in paragraphs 54 to 89 of the Board’s Decision, and it is not necessary for this court to repeat them here.
16. In gist, the Board found that the applicant’s claim was based on hearsay from her sister that her parents were furious about her refusal to the arranged marriage and the applicant’s subsequent pregnancy out of wedlock. The applicant’s evidence was that she had never spoken to her parents on both matters and hence her parents did not make any threat to her directly. The applicant was never physically hurt because of those matters and had not sought help from the authorities in her country in relation to the threats issued.
17. The Board found no evidence to support that the applicant’s parents had a real intention to carry out the threats. The applicant actually agreed at the Board’s hearing that her father’s statement relayed by her sister, ie “not to show her face at home”, did not mean that the applicant’s parents did not allow her to go back to the Philippines. The Board was of the view that the ill-treatment inflicted by her parents, whether physical or mental, did not attain a minimum level of severity that warranted international protection.
18. Further, the applicant’s dispute with her parents was a purely private familial dispute and had nothing to do with the Philippines government. The applicant’s fear of her parents was not for any Convention reasons.
19. Moreover, the Board found the applicant’s belief that the Philippines police were corrupt and would not help her was only her own conjecture without factual basis. The Board was not persuaded that the Philippines police force would disregard her complaint or refuse to help and protect her if she made a complaint to them for threat and domestic violence. There was also information from the country of origin information (“COI”) that the Philippines government advocated women’s rights and provided services for victims of violence.
20. As aforesaid, the Board had addressed the applicant’s concerns on internal relocation and found that the applicant could resort to relocation in the country in order to avoid the claimed risks (see paragraphs 81 to 89 of the Board’s Decision).
21. Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.
22. The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
23. 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.
24. 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
25. For reasons aforesaid, the Leave Application is dismissed.
Dated the 13th day of May 2026
| |
( Gladys LEE )
for Registrar, High Court
|
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:
|
|
|
|
|
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)).
|
|
Sent/Handed to the applicant/the applicant’s solicitors
on: 13/05/2026
Applicant’s ref. no:
Nil |
|
Sent/Handed 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: 13/05/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 27641
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1999/25 (Formerly RBCZ 5001899/25)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|