BERMAS MAEDEN BRECIA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1430/2023

[2026] HKCFI 4239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1430 of 2023

Application for Leave to Apply for Judicial Review

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

Following;

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 Putative Respondent; and

b.  The Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 17 August 2023 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 28 July 2023 (the “Board’s Decision”).

2.  In the Form 86, the Applicant has named the Board as the proposed respondent and also the proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, 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 15 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 unnecessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. In short, the Applicant came from the Philippines to Hong Kong to work as a domestic helper since 2012 but she remained in Hong Kong despite the termination of her employment in August 2014. She claimed that she will face danger if she were to return to her home country because her father (the “Father”) had defaulted on a loan (the “Loan”) which was taken out on 7 May 2018 from a moneylender (the “Moneylender”). She also claimed that the Father had disapproved of the Applicant’s child and that the Father might harm the child. At the hearing before the Board, she also advanced a new claim that she would face danger in the Philippines because she received proceeds of drug sales from her brother (the “Brother”) who was involved in drug trafficking. She was afraid that she would be killed by a drug syndicate (the “Drug Syndicate”) for taking their money.

Discussion

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

6.  The relevant general principles are well established. 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.

7.  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. 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.

8.  The Applicant has failed to advance any effective grounds of review. Although various complaints were made in the Form 86, all of these complaints consist only of blanket and unparticularised allegations or disagreement with the findings of the Board. No detail has been advanced as to how and why the Board is said to have erred which warranted intervention by way of judicial review. For example, in §10 of the grounds of review annexed to the Form 86, the Applicant complained that the Board relied upon “outdated” cases without any elaboration as to which cases relied upon the Board are said to be outdated.

9.  Notwithstanding the above, I have reviewed the Board’s Decision and do not detect 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.

10.  The Board’s Decision was comprehensive with adequate reasons provided. In particular, I find no basis to doubt the correctness of the Board’s finding that there is no evidence of any real risk of serious harm, in particular that:-

(1)  Based largely on bare assertion, the Applicant’s evidence was found to be incredible. The Moneylender was not a loanshark as alleged. Based on public information, the Moneylender was an established and legitimate business under legal regulation. There was no evidence that the Moneylender would have any motive to harm the Applicant who was not the borrower (§§39-42, 52-55). The Board was also entitled to reject the Applicant’s account concerning the Brother and the Drug Syndicate given the lack of credibility of the Applicant (§80).

(2)  The Applicant’s evidence had also shifted from time to time, making new claims without any explanation. For example, at the hearing, she mentioned for the first time that the Father had other debts apart from the Loan but failed to provide any information on these other debts. Again, there was no reason why the other creditors would pursue the Applicant (§§52, 57, 69, 78).

(3)  In any event, there is simply no evidence before the Board that any of the Father’s creditors have actually used any violence on any of the Applicant’s family members, despite having ample opportunities to do so. In light of the above, the Board was entitled to reject the Applicant’s bare assertion that black clad armed men were spying on her Father’s house (§§30, 78).

(4)  For completeness, the Applicant’s additional claims about the Father and the Drug Syndicate were entirely speculative without any proper factual basis (§§35, 79).

11.  In such circumstances, the Applicant’s case is completely devoid of merits. The Board’s Decision satisfies the enhanced Wednesbury test and cannot be said to be irrational.

12.  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

13.  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