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HCAL 1915/2023
[2026] HKCFI 3262
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1915 OF 2023
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BETWEEN
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Colangao, Vilma Malunas |
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”.
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 24 October 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 17 October 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/HCAL001915_2023_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 9 July 2021 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the Director’s Decision, which rejected her non-refoulement claim.
Amendment
3. The applicant named both the Director and the Board as the putative respondents in Form 86, when only the Board should be the putative respondent.
4. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.
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 might be harmed or killed by her husband who had been abusive to her, and accused her of having affairs with other men and committing adultery in the past.
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 her supporting affidavit dated 24 October 2023, the applicant only mentioned that her claim was not considered properly.
Discussion
10. First of all, the applicant’s complaint in her supporting affidavit that her claim was not considered properly was advanced without any particulars.
11. 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”.
12. Thus, the general assertion put forward by the applicant in the said affidavit cannot help the applicant at all.
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, 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 for any errors of law, procedural unfairness, or irrationality as aforesaid.
15. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 20 September 2023. The applicant was present and was given the chance to present her case to the Board in person.
16. As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. The findings of the Board in relation to the applicant’s claim were laid out in paragraphs 22 to 35 of the Board’s Decision.
17. In gist, although the Board found the applicant’s account more likely than not to be true, the risk of violence from the husband could be reduced by effective state protection and assistance from other organisations which offered help to women and children. With regards to the applicant’s risk of being prosecuted for adultery, the Board had considered objective country of origin information (“COI”) which showed that there was no real risk of successful prosecution or conviction for that crime. Further, the Board found that the applicant’s husband would be unable to successfully instigate a prosecution, since he would not be able to name the guilty male party.
18. Thus, the Board concluded that the applicant was not at a real risk of violence at the hands of her husband, since she could rely on reasonable state protection in her home area. Moreover, the applicant did not face a real risk of effective prosecution or punishment for adultery.
19. Given the Board’s findings, the Board considered it not necessary to assess whether the applicant could safely and reasonably relocate internally in the Philippines. Nevertheless, the Board still did so in case its assessment of the applicant’s risk in her home area was wrong.
20. The Board had given full reasons for its finding that the applicant did have a safe and reasonable relocation alternative in paragraphs 40 to 42 of the Board’s Decision, and it is not necessary for this court to repeat the same here.
21. Thus, the Board concluded that the applicant’s appeal/petition and her claim for non-refoulement protection in Hong Kong failed 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 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.
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 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.
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 3rd day of June 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: 03/06/2026
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: 03/06/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 18344
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 472/21 (Formerly RBCZ 10431/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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