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HCAL 1325/2023
[2026] HKCFI 3111
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1325 OF 2023
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BETWEEN
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Coronel Hilda Diaz |
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 the name of the putative interested party be amended to “Director of Immigration”.
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 1 August 2023, 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 25 July 2023 (“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/2023/HCAL001325_2023_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 4 February 2022 and confirmed the same, which rejected her non-refoulement claim.
Amendments
3. The applicant named the Board and Immigration Department as both the putative respondents and the putative interested parties in Form 86, when only the Board should be the putative respondent, and only the Director should be the putative interested party.
4. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
The applicant’s case
5. 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.
6. In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, she would be harmed or killed by her step-father, as the applicant had persistently requested her mother, who had been subjected to her step-father’s long history of domestic violence and abuse, to leave him.
Disposal on paper
7. 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
8. 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).
9. The applicant did not advance any ground for her intended judicial review in Form 86. In the applicant’s supporting affidavit dated 1 August 2023 under the heading “GROUNDS FOR JUDICIAL REVIEW FOR MY NON REFOULEMENT CLAIM”, she laid out in 7 paragraphs some general grounds which were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. The applicant is no exception.
10. Nevertheless, as the applicant is relying on those grounds, this court will deal with them in the ensuing discussion.
Discussion
11. There were a total of 7 paragraphs under the heading “GROUNDS FOR JUDICIAL REVIEW FOR MY NON REFOULEMENT CLAIM” in the applicant’s affidavit dated 10 August 2023, and they were numbered as paragraphs 4 to 10 respectively in the said affidavit.
12. In paragraph 4, the applicant asserted that there was procedural impropriety in that the Board failed to “properly apply para 2 of the UN committee against Torture General Comment No.2 whereby satisfaction of a National states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event, cf, the TCAB and the Director Decision which focused on whether such reliefs showed merely signs of positive improvement (see also JKF CACV 103/2024)”.
13. However, the applicant failed to specify how and why the Board had failed to do so, and if it had indeed done so, which aspects of her claim was decided with procedural impropriety.
14. In paragraph 5, the applicant again asserted that there was procedural impropriety and accused the Board for failing to conduct sufficient inquiry into the relevant country of origin conditions, and failing to consider the applicant’s serious risk and the facts that why she would not return to her country because of her fear from her enemies.
15. Despite these allegations, the applicant did not specify what country of origin information (“COI”) that the Board had failed to conduct sufficient inquiry, or how the Board failed to consider her risk and her fear of her enemies.
16. Similarly, the applicant asserted in paragraph 6 that there was procedural impropriety or irrationality in that the Board failed to reason for the lack of BOR 2 and BOR 3 risks. The applicant admitted that her claim might be a personal dispute, but stated that the risk she would face was beyond imagination.
17. The applicant also asserted in paragraph 7 that there was error or misdirection in law in that the Board failed to take into account the psychological strain and threats to her personally, etc.
18. In fact, the applicant’s risk, her fear of return and the level of severity of harm that she claimed to face had been duly assessed by the Board. If she intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
19. In paragraph 8, the applicant asserted again that there was procedural impropriety in that the Board failed to consider her fear that her enemies still feared for her, and she could not relocate to other places because they could easily trace her wherever she hid in her country.
20. This court notes that the Board had given its full and detailed reasoning in paragraphs 94 to 100 for its conclusion that the applicant had many options for internal relocation within the Philippines, and had addressed the concerns of the applicant with regards to internal relocation. In gist, the Board considered that even if the applicant had been able to show that she faced a real risk of harm from her step-father, which the Board found she had not, the Board would have concluded that any risk was localised and was confined to the applicant’s home area. The Board explicitly stated that it found no credible or reliable evidence that the applicant’s step-father possessed the necessary means and/or resources to succeed in finding and harming the applicant.
21. Lastly, in paragraphs 9 and 10, the applicant seemed to accuse the Board for failing to provide reasons for its decision that the applicant’s claim was not established, or there was no sufficient basis for the Board to conclude that she and her family would not be at risk of being subjected to torture and/or CIDTP[1] upon refoulement.
22. Contrary to the applicant’s assertion, this court finds that the Board had analyzed the applicant’s claims in detail, and had provided full and justified reasons for rejecting the applicant’s claim for non-refoulement protection.
23. The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.
24. Thus, the general assertions put forward by the applicant, which merely contained “key words” such as there was procedural impropriety, irrationality, error or misdirection in law, cannot help the applicant at all.
25. This court finds that none of the matters that were raised by the applicant in her supporting affidavit constitutes a valid ground to challenge 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, 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 as aforesaid.
28. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 11 May 2023. The applicant was present and was given the chance to present her case to the Board in person.
29. As aforesaid, the Board gave full and detailed reasoning in rejecting the applicant’s claims.
30. The findings of the Board in relation to the applicant’s claim were laid out in paragraphs 87 of the Board’s Decision. In gist, the Board found that the applicant was never intentionally harmed by her step-father. The applicant conceded that her step-father’s only physical contact with her during the incident in January 2020 had been purely accidental. The step-father never physically harmed the applicant’s brothers. There was no evidence that the applicant, her mother and brothers had ever suffered any severe pain or suffering, whether physical or mental, as a result of any ill-treatment by the applicant’s step-father, that would be sufficient to establish any of the applicable grounds under the USM.
31. Moreover, neither the applicant nor any of her family members had ever reported any ill-treatment by her step-father to the police in the Philippines and/or to any of the other authorities there. There was no evidence of any involvement of the state in the alleged ill-treatment. There was also no sufficient or reliable information concerning the connections and/or resources of the applicant’s step-father and his alleged ability to be able to locate the applicant anywhere in the country.
32. In the assessment of state protection to the applicant, the Board found the available COI demonstrated that the applicant would be able to seek assistance from both the state authorities in the Philippines, as well as from non-governmental organisations there, if she needed it in the future.
33. As mentioned, the Board had addressed the applicant’s concerns about the viability of internal relocation and concluded that there were many options for internal relocation available to a person with the applicant’s profile. The Board rejected the applicant’s assertions that internal relocation would be unsafe, cause her undue hardship or otherwise be unreasonable.
34. Thus, the Board concluded that the applicant had failed to establish, even to the relatively low standard of proof required, a case for non-refoulement protection in Hong Kong.
35. 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.
36. 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 error 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.
37. In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed 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
38. For reasons aforesaid, the Leave Application is dismissed.
Dated the 27th day of May 2026
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( Gladys LEE )
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 his 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: 27/05/2026
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: 27/05/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 19969
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 2813/21 (formerly RBCZ 5000426/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Cruel, inhuman or degrading treatment or punishment.
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