ASPABO TESSA CANOSO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 898/2023

[2026] HKCFI 4083

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 898 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and the Applicant being absent at the hearing in open court;

1.  Form 86 be amended on the court’s own motion as follows:-

a.  The Torture Claims Appeal Board / Non-Refoulement Claims Petition Office be named as the 1^st Putative Respondent; and

b.  The Director of Immigration be named as the 2^nd Putative Respondent.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 8 June 2023 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against (i) the decision of the Director of Immigration (the “Director”) dated 31 May 2022 (the “DOI Decision”) and (ii) the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 22 May 2023 (the “Board’s Decision”).

2.  To ensure that the parties are named correctly, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 13 July 2026 (the “Hearing”) and the Applicant was absent.

Background

4.  The Applicant’s background, the basis and history of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. In summary, the Applicant came from the Philippines to Hong Kong to work as a domestic helper in August 2019. Her employment contract was prematurely terminated on 1 September 2021 and she has remained in Hong Kong since then. She claimed that she is in fear of being subjected to ill-treatment or being killed by members of the New People’s Army (“NPA”) if she were to return to the Philippines.

Discussion

5.  The leave application is intended to be a filtering process and elaborate reasons are not necessary, see: Re Zunariyah [2018] HKCA 14 at §23. Hence I shall set out the brief reasons for my decision below.

6.  First, the present challenge against the DOI Decision is misconceived. The appeal to the Board is conducted by way of rehearing and the Board’s Decision effectively supersedes the DOI Decision, see: Re Moshsin Ali [2018] HKCA 549 at §45. Hence, the focus should be on the Board’s Decision.

7.  Second, judicial review does not operate as a further avenue of appeal. Though in non-refoulement cases, the Court applies a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court must not usurp the role of the Board. Assessment of evidence, country of origin information (“COI”) materials, risk of harm, availability of state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board, see: Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

8.  Third, an applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection HCAL 21/2015 (unreported, 22 December 2016) per Chow J (as he was then) at §142.

9.  Where a Form 86 contains only general assertions without particulars as to underlying facts or matters upon which the Board’s Decision is said to be erroneous, such assertions are not effective grounds to support a judicial review, see: Re Haider Khalil [2021] HKCA 223 at §16. Unfortunately, this is exactly what the Applicant has done. The grounds she advanced were only blanket claims that the Board has acted wrongly or unfairly in the evaluation of evidence or in the procedures before the Board. She has wholly failed to advance any particulars as to why, how and in what manner the Board is said to have erred. The Applicant also failed to attend the Hearing to explain to the court what were her grounds of review. On account of these failures, the Leave Application should be dismissed.

10.  For completeness, I have reviewed the Board’s decision, I do not find any error of law, procedural unfairness or irrationality. There is nothing to indicate that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters:-

(1)  I am satisfied that the hearing before the Board was conducted in a fair manner. As noted in the Board’s Decision the Applicant was invited to attend a hearing before the Board where she gave oral evidence and answered questions from the Board on various aspects of her claim (§§40-57).

(2)  Having considered all material aspects of the Applicant’s evidence, the Board was entitled to find the Applicant’s case to be incredible and that the Applicant had not been truthful. Hence, there was no real risk of harm if she is returned to the Philippines (§§65, 81). For example:-

(a)  Her account of having allegedly witnessed killings of civilians by the NPA had shifted from time to time (§§68-69).

(b)  Despite the Applicant’s claim that she was pursued by the NPA for having taken money from it, yet, the Applicant admitted in the screening interview that she had no interaction with the NPA since 2004 (§74).

(c)  The Board is also entitled to reject the Applicant’s explanation for her delay in applying for non-refoulement protection and to find that the delay undermined her credibility (§80).

11.  In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

Conclusion

12.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be 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