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HCAL 735/2023
[2026] HKCFI 4540
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 735 OF 2023
BETWEEN
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Polinday Marichu Solimen |
Applicant |
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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 16 May 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 4 May 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/HCAL000735_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 21 June 2021 and confirmed the same, which rejected the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant named “torture claims Apple board” as the putative respondent, and “Director at Immigration” and “torture claim Appeal board” as the putative interested parties.
4. It is correct that the Board should be the putative respondent, but the applicant wrongly spelt its name in Form 86. Also, only the Director should be named as the putative interested party in Form 86.
5. 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
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 the proscribed harm there from anonymous members of an unidentified drug syndicate (“the syndicate”), from whom her former boyfriend, Fidel Agabas (“Fidel”), had stolen an unknown amount of money from the proceeds of their drug sales. The applicant claimed that after Fidel absconded with the syndicate’s money, he disclosed personal information about the applicant to the syndicate and assured the syndicate that the applicant would repay the money he had stolen from them.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 6 August 2026.
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 identify any ground for the intended judicial review in Form 86, nor in her supporting affidavit dated 16 May 2023. She merely stated in the said affidavit that she did not agree with the Board’s Decision.
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, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any ground being advanced by the applicant for the intended judicial review.
15. In assessing the appeal/petition by the applicant, the Board arranged an oral hearing on 3 September 2021. Thus, the applicant was given the opportunity to present her case to the Board in person.
16. As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection.
17. The Board laid out its findings and assessment of the credibility of the applicant’s claims in paragraphs 75 to 100 of the Board’s Decision, and it is not necessary to repeat the same here.
18. In gist, the Board found that the applicant’s evidence in support of her non-refoulement claim lacked vividness, specificity and detail. The applicant was unable to provide any significant information at all about the identity of the syndicate or any of its members. The Board also found material inconsistencies in the applicant’s claims, and that the applicant failed to make a full and prompt disclosure of information. The Board found the applicant’s claims concerning her return flight from Hong Kong to the Philippines on 12 January 2020 implausible and lacking in coherence overall.
19. Moreover, the Board noted implausibilities in the applicant’s evidence regarding: (1) the syndicate members’ surveillance of the applicant’s family home approximately one year prior to her scheduled date of return to the Philippines; (2) the syndicate’s members carried out hundreds of night time observations of the applicant’s family home; and (3) her new claim at the Board’s hearing that her children, who were residing in her mother’s home, would be forced to relocate with her due to her mother’s advanced age, which was 60 at the material time.
20. The Board also observed that the applicant’s testimony lacked spontaneity, vividness and specificity. The Board found her to be a poor witness.
21. More importantly, the Board found that the applicant’s fear of the syndicate was completely based on hearsay evidence from Fidel and her mother. The Board found that the applicant’s claims consisted almost entirely of bald assertions based exclusively on hearsay evidence and unsupported by any significant details and/or objective evidence. The Board was not persuaded, even to the low standard required, that the material events and the conditions the applicant described in the Philippines, upon which her claim was based, were factually accurate.
22. Even the Board was willing to give the benefit of the doubt and attach some credence to the possibility that Fidel might have been involved with a drug syndicate from which he had stolen money, the Board was unwilling to attach any credence to the applicant’s evidence about the risks she claimed the syndicate posed to her and her family. In particular, the Board did not accept that members of the syndicate threatened to kill the applicant and conducted a years-long surveillance of her family home as she had claimed.
23. The Board also found that the applicant was never threatened by the syndicate personally. There was no evidence that the authorities in the Philippines were involved in any way in any ill-treatment of the applicant and/or her family members by the syndicate. There was also no reliable information concerning the resources of the syndicate and/or its ability to locate the applicant countrywide in the Philippines.
24. With regards to state protection, the Board had discussed the same in paragraphs 101 to 106 of the Board’s Decision, and found that the applicant would be able to seek assistance from the authorities in the Philippines if she needed it. There was nothing in the available information to indicate that she would be refused assistance in the future, if she requested it. The Board found that reasonable state protection would be available to her in her country.
25. The Board had also given full reasons in paragraphs 107 to 111 of the Board’s Decision for its finding that there were many reasonable options for internal relocation in the Philippines available to a person with the applicant’s profile. The Board rejected the applicant’s assertions and found that the applicant had failed to establish that her relocation to another part of the country would be unsafe, cause her undue hardship or otherwise be unreasonable.
26. Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.
27. The finding of facts, including the assessment of evidence 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.
28. 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.
29. 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
30. For reasons aforesaid, the Leave Application is dismissed.
Dated the 12th day of August 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: 12/08/2026
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: 12/08/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 18208
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 622/21 (formerly RBCZ 10631/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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