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HCAL 3548/2019
[2025] HKCFI 5192
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3548 OF 2019
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BETWEEN
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Ildefonso, Erlinda Dulyok |
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 “Director of Immigration” be added as the putative interested party.
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 19 November 2019 and filed on 29 November 2019, 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 24 October 2019 (“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/2019/HCAL003548_2019_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 19 July 2019 (“the Director’s Decision), which rejected her non-refoulement claim.
Amendments
3. In Form 86, the applicant named both the Board and the Director as the putative respondents but spelt the Board’s name wrong. Further, she did not name any putative interested party.
4. In fact, only the Board should be the putative respondent and the Director should be the putative interested party.
5. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and “Director of Immigration” is added as the putative interested party.
The applicant’s case
6. 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.
7. In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, she would be at risk of harm or death from her husband Joel Ildefonso (“Joel”). Joel was a drug addict who had physically abused her. She was especially afraid because she had reported his drug peddling activities to the police, which resulted in the arrest of members of his drug gang.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application. However, she was absent at the hearing on 21 August 2025.
9. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
10. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
Grounds for judicial review
11. 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).
12. The applicant did not advance any ground for the intended judicial review in Form 86, nor in her supporting affidavit dated 29 November 2019.
Discussion
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 ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
15. In assessing the appeal by the applicant, the Board arranged an oral hearing on 9 October 2019 and the applicant was present. Thus, the applicant did have the opportunity to present her case to the Board in person.
16. As can be seen from the Board’s Decision, the Board gave very detailed analysis and reasoning in rejecting the applicant’s claims. The Board found many aspects of her claims implausible and irrational. The material findings of facts were laid out in paragraphs 43 to 47 of the Board’s Decision.
17. Given its findings, the Board was of the view that most, if not all, of the core assertions of the applicant’s non-refoulement claim had been fabricated or were wholly unreliable. For the cumulative reasons given, the Board did not accept the applicant as a credible witness.
18. In particular, the Board rejected that the report to the Villaverde Police Station had placed the applicant at risk of harm. There was no evidence of state acquiescence in the alleged ill-treatment of the applicant. There was no credible evidence that the applicant had suffered physical and/or mental suffering of the requisite severity. There was no reliable evidence that the alleged perpetuator, Joel, had ill-treated the applicant with an intention listed in the definition of torture in section 37U of the Ordinance.
19. Significantly, there was no evidence at all to show that the state or government of the Philippines was unwilling or unable to afford protection to the applicant, or unwilling to help the applicant for a Convention reason.
20. As to internal relocation, the Board adopted the well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area, but she had not.
21. As it was the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it was not necessary for the Board to consider internal relocation.
22. Thus, the applicant’s alleged danger upon return to her home country had been duly considered but rejected by the Board.
23. 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. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
24. 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.
25. 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
26. For reasons aforesaid, the Leave Application is dismissed.
Dated the 31st day of October 2025
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( Irene 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 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/Handed to the applicant/the applicant’s solicitors on:
31 October 2025
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: 31 October 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16121/19/7/87/F1086
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 517/19 (T1S110)
(formerly RBCZ 10355/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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