FRANCISCO AVELINE DEGALA v. TORTURE CLAIMS APPEAL BOARD

HCAL 753/2020

[2025] HKCFI 5863

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 753 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”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 3 February 2017”.

2.  The applicant’s application for leave 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 15 April 2020 and filed on 23 April 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the “FINAL DISMISSED MY APPEAL OF TORTURE CLAIMS APPEAL BOARD DISMISSED MY PETITION SEEKING JUDICIAL REVIEW LAST 3RD MARCH 2017”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 3 February 2017 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decisions of the Director of Immigration (“the Director”) dated 31 August 2015 and 2 November 2016 (collectively “the Director’s Decisions”). It is clear that the Board’s Decision is the subject of the Leave Application.

3.  The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000753_2020_files/the_Board's_Decision.pdf

4.  The Board found that the applicant failed to establish a case of non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed her appeal/petition and confirmed the Director’s Decisions.

Amendments

5.  The applicant named both the Board and the Director as the putative respondents and did not name any putative interested party in Form 86.

6.  In fact, only the Board should be the putative respondent and the Director should be the putative interested party.

7.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.

8.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration” and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 3 February 2017”.

Late application

9.  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.

10.  However, the applicant filed her Form 86 on 23 April 2020, which was more than 38 months after the Board’s Decision (made on 3 February 2017). The applicant was hence late for more than 35 months in making the Leave Application.

11.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which 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.

12.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application.

13.  The delay of more than 35 months is very substantial. Moreover, there is no merits of the intended judicial review as discussed below.

14.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

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

The applicant’s case

16.  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.

17.  In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, she would be harmed or killed by people of the terrorist group of Muslims called Abu Sayyaf Group (“ASG”) which was engaged in civil war against the Philippines Government.

Withdrawal of the Leave Application and removal of the applicant

18.  By a letter dated 14 July 2025, the Director informed this court that the applicant wrote a letter dated 9 July 2025 to withdraw the Leave Application as she wanted to return to her home country as soon as possible. However, the applicant did not state that it was safe for her to return to her home country.

19.  Before the Leave Application or the applicant’s withdrawal application was dealt with, the Director informed this court on 17 September 2025 that the applicant was removed from Hong Kong during the period from 8 September 2025 to 14 September 2025.

20.  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.

21.  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.”

22.  Thus, it is not right to leave the action at large by granting leave to withdraw to the applicant. This court will proceed to deal with the Leave Application.

Grounds for judicial review

23.  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).

24.  The applicant did not assert any grounds for her intended judicial review in Form 86, nor in her supporting affidavit dated 23 April 2020. She merely stated in the affidavit that the Leave Application was against the decisions of both the Director and the Board.

Discussion

25.  First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). This court will only deal with the Leave Application in respect of the Board’s Decision.

26.  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).

27.  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.

28.  In assessing the applicant’s appeal/petition, the Board arranged an oral hearing on 28 November 2016 and the applicant was present. Thus, the applicant did have the opportunity to present her case to the Board in person.

29.  As can be seen from the Board’s Decision, the applicant claimed that she had been assaulted by 3 ASG members some 18 years ago but she was released after she told them her father was a Barangay member.

30.  The attackers were non-state actors, and the applicant had not sustained any injury which could amount to a minimum level of severity. Furthermore, the alleged assault, and future risk thereof, had not been and would not be launched under any Convention Category.

31.  The Board found from extensive country of origin information (“COI”) that although the ASG carried out terrorist activities, the contingent of only 400 members was far from strong, and their main area of activity was only in the Mindanao and Sulu Archipelago. The Board found no substantial risk or any substantial basis of fear by the applicant about the ASG if she resided elsewhere than the two areas. There were many places in the Philippines other than the applicant’s home locality, where as an able-bodied young woman with work experience the applicant could safely reside without undue hardship.

32.  The Board also considered that the applicant’s failure to seek protection in the 4.5 years in Hong Kong before being arrested by the police for overstaying damaged her credibility and cast doubt on the veracity of her claim.

33.  With the findings as summarised above, the Board concluded that the applicant had failed to establish a case for non-refoulement protection.

34.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

35.  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.

36.  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

37.  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 also for lack 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