CASTILLO RUBY CORDERO v. TORTURE CLAIMS APPEAL BOARD

HCAL 974/2021

[2026] HKCFI 3033

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 974 OF 2021

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 9 June 2021”.

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 12 July 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 9 June 2021 without identifying the decision-maker.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 9 June 2021 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 25 November 2020 (“the Director’s Decision”).

3.  The applicant annexed a copy of the Board’s Decision to her supporting affidavit dated 12 July 2021 and confirmed at the oral hearing before this court on 14 May 2026 that the Leave Application was in respect of the Board’s Decision. Thus, it is clear the subject matter of the Leave Application is 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/HCAL000974_2021_files/the_Board's_Decision.pdf

4.  The Board found that the applicant could not establish her non-refoulement claim on any of the applicable grounds under the Unified Screening Mechanism (“the USM”) and in any event, internal relocation was a reasonable and practicable option for her. Hence, the Board rejected the applicant’s claim for non-refoulement protection and confirmed the Director’s Decision, which rejected her non-refoulement claim.

Amendments

5.  The applicant wrongly named “USM” as the putative respondent and “T.C.A.B” as the putative interested party in Form 86, when the Board should be the putative respondent and the Director should be the putative interested party.

6.  As aforesaid, the Board’s Decision should be the subject matter of the Leave Application.

7.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, the name of the putative interested party is amended to “Director of Immigration”, and the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 9 June 2021”.

The applicant’s case

8.  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.

9.  In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, she would be seriously harmed or killed by the New People’s Army (“NPA”). The applicant claimed that NPA had killed her father and her brother. She also claimed that she would be punished and tortured by members of the fraternity group in her home village for her theft, as she left her village taking with her the money belonging to the fraternity group, of which she was the treasurer at the material time. She further claimed that she would be arrested by the police for her theft.

Oral hearing

10.  The applicant requested for an oral hearing of the Leave Application and her case was heard on 14 May 2026.

11.  When this court asked the applicant for the grounds for her intended judicial review, she merely replied that her daughter would sponsor her in obtaining a dependent visa in Hong Kong and she wanted to stay here.

Grounds for judicial review

12.  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).

13.  The applicant did not advance any grounds for her intended judicial review in Form 86, nor in her supporting affidavit dated 12 July 2021.

14.  What the applicant said at the oral hearing cannot amount to any valid ground for judicial review either.

Discussion

15.  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).

16.  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.

17.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 2 June 2021. The applicant was present and was given the chance to present her case to the Board in person.

18.  The Board discussed and analyzed the applicant’s case and its credibility at length in paragraphs 113 to 125 of the Board’s Decision.

19.  In gist, the Board found that the applicant’s very serious delay in making her non-refoulement claim had adversely affected her credibility.

20.  The evidence showed that nothing untoward happened to the applicant after she fled to Manila in 1982. The applicant asserted that the police attempted to arrest her in Manila in 1992. The Board found it implausible that the village fraternity group was maintaining an interest in the applicant after a lapse of 10 years. The Board did not accept that the Philippine police had tried to arrest or approach the applicant shortly before she came to Hong Kong and that a theft charge was laid against her in about 1992 for the theft she committed in 1982. Even if she were wanted by the authorities in connection with her theft, legal punishment for a common law crime such as theft would not normally constitute persecution.

21.  Further, the Board was of the view that with the lapse of almost 40 years since 1982, there was no evidence to suggest that the village fraternity group would pose any threat of illegal harm towards the applicant.

22.  With regards to the applicant’s claimed threat from NPA, the Board found from reliable country of origin information (“COI”) that NPA’s heydays were over. There was no evidence to show that NPA had been trying to hunt down the applicant all these years. The Board found that given the extraordinary long lapse of time, the weakening of NPA and the absence of evidence showing that NPA had any reason to maintain an interest or animosity towards the applicant, there was no real chance that the applicant was at any risk of harm by NPA.

23.  Given the Board’s findings that the applicant’s claimed fear of arrest by the police, her  fear of being tortured by the fraternity group in her home village, and her fear of being harmed or killed by NPA were all rejected, the Board considered it not strictly necessary to make findings on internal relocation for the applicant. However, the Board still did that for the sake of completeness. The Board had laid out its reasons in paragraphs 129 to 132 of the Board’s Decision for the finding that internal relocation in the Philippines was not unduly harsh or unreasonable for the applicant. This court finds no flaw in such a finding.

24.  Thus, the Board concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

25.  The finding of facts, 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. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

26.  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.

27.  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

28.  For reasons aforesaid, the Leave Application is dismissed.

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