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HCAL 1038/2022
[2026] HKCFI 2175
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1038 OF 2022
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BETWEEN
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Catudio Eliza Aviles |
Applicant |
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and |
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The Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
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 (Ord 53 r 3)
Following:
Order by Deputy High Court Judge (Non-Refoulement Claims) Ken To:
1. Form 86 be amended, naming the Director of Immigration as the Putative Interested Party.
2. Leave to withdraw the application for leave to apply for judicial review be granted; and
3. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 3 October 2022 (“Form 86”), the Applicant applied for leave to apply for judicial review (“Leave Application”) against the decision of the Torture Claims Appeal Board (“Board”) dated 23 September 2022 (“Board’s Decision”)[1], dismissing the Applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 15 September 2021 (“Director’s Decision”).
2. The Applicant attended an oral hearing in person for the Leave Application on 2 March 2026, and submitted that she had nothing to add to her application.
3. I amend the Form 86 on my own motion to name the Director of Immigration as the putative interested party.
Discussion
4. The Leave Application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It suffices for me to state my observations after considering the Board’s Decision and the Applicant’s materials adduced. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
5. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Although the Court will adopt an enhanced standard in scrutinizing the Board’s Decision due to the seriousness of the issue, it should not usurp the role of the Board. The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.
6. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22/12/2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.
7. The Applicant did not point to any error of law, procedural unfairness or irrationality of the Board’s Decision in the Form 86 nor in her affirmation in support.
8. The Board’s Decision took into account the evidence available [3-17, 20-21], properly considered Country of Origin information [37-39, 52, 54], applied the correct legal test [22-36, 44, 47, 49] and found that the Applicant’s allegations were insufficient to make out any of the applicable grounds [41-43, 45-46, 48, 50-55]. The Board found that the Applicant failed to show that she is entitled to non-refoulement protection in Hong Kong.
9. Having considered the Board’s Decision with rigorous examination and anxious scrutiny, I do not find any error of law, procedural unfairness or irrationality. The Board’s Decision was comprehensive with adequate reasons provided. There is also nothing to indicate that the Board failed to take into account any relevant matters, or otherwise reached a decision that it was not entitled to make. Accordingly, there is no reasonably arguable ground for judicial review with any realistic prospect of success.
10. By letter dated 26 March 2026, the Applicant applied to withdraw her Leave Application to return to her home country. There is no indication that the application for withdrawal was made other than of the Applicant’s own free will. There is nothing outstanding in these proceedings.
11. I grant leave to the Applicant to withdraw her Leave Application, and order that the Leave Application be dismissed: see Re Manik MD Mahamudun Nabi [2022] HKCA 471 at [19].
Dated the 18th day of May 2026
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(Joyce Ooi)
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 18/05/2026
Catudio Eliza Aviles
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 18/05/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 18807
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1249/21 (formerly as RBCZ 10658/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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