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HCAL 398/2021
[2026] HKCFI 1763
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 398 OF 2021
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BETWEEN
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Benuloan Sandra Dulosa |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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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. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.
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 the decision of the Torture Claims Appeal Board (“the Board”) dated 17 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/HCAL000398_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant had failed to demonstrate that she was entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board dismissed her appeal/petition against the decision of the Director of Immigration (“the Director”) dated 4 August 2020, which rejected the applicant’s non-refoulement claim, and confirmed the same.
Amendments
3. In Form 86, the applicant named the Board and the Director as the putative respondents but did not name any putative interested party.
4. In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.
5. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and “Director of Immigration” is added as the putative interested party.
The applicant’s case
6. 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.
7. In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, she would be at risk of being harmed or killed by her cohabitee, Amir Ama (“Amir”), as she terminated her relationship with him, and she heard that Amir was angry and believed that she had another man and a baby in Hong Kong.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 26 February 2026.
9. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
10. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
Grounds for judicial review
11. 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).
12. The applicant did not identify any grounds for the intended judicial review in Form 86, nor in her supporting affidavit dated 22 March 2021.
Discussion
13. 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).
14. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.
15. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 9 February 2021 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.
16. After careful consideration of all the evidence, the Board found that the applicant’s claim was largely based on her own assertion and speculation that she would be harmed by Amir if she were to return to the Philippines. It was the applicant’s own evidence that she did not encounter any further violence from Amir after 2007, and Amir disappeared from 2007 and returned in 2015. She had no contact with Amir since early 2018. Amir did not harm her family and did not even ask her family of her whereabouts. The applicant had never sought assistance from the police in the Philippines.
17. The threat of harm from Amir over Facebook Messenger before the applicant left him in early 2018, and the hearsay information from her friends, did not convince the Board, even to the low standard applicable, that Amir had the intention to harm her if she were to return to the Philippines.
18. The Board found that there was no state acquiescence in Amir’s ill-treatment of the applicant. The injuries the applicant suffered in the past were not serious and did not amount to torture as defined in section 37U of the Immigration Ordinance or attain a level of minimum severity. The applicant’s claimed fear from Amir was not for any Convention reasons.
19. Further, the Board found from extensive, fully-referenced country of origin information (“COI”) that despite the presence of police inefficiency, corruption and domestic violence in the Philippines, the Philippine government had put measures in place to improve police effectiveness in recognizing and dealing with violence against women and children, and to combat corruption. The applicant’s assertion that Amir could be influential was her own speculation without evidence in support. The Board found that reasonable state protection was readily available to the applicant.
20. Moreover, the Board did not find that it would be unduly harsh for the applicant, being 49 years old at the time of the Board’s Decision with education up to college level and ample work experience as a domestic helper, to relocate to a place of her choice in the Philippines to avoid any perceived harm from Amir. With her education and work experience, it would be unreasonable to speculate that she would not be able to find work in a city like Manila or Cebu because of her age.
21. Thus, the Board did not see any real chance that the applicant would be subjected to any of the proscribed forms of harm upon refoulement. The Board rejected the applicant’s claim for non-refoulement protection on all the applicable grounds under the USM.
22. 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.
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 25th day of March 2026
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( Teresa NG )
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/Handed to the applicant/the applicant’s solicitors on: 25 March 2026
Applicant’s ref. no:
Nil |
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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: 25 March 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 17137/20/8/8/F1190
Director of Immigration
Putative interested party’s ref. no.: QA T/C 457/20 (formerly RBCZ 10381/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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