AWINGAN ROWENA BOLANIT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1632/2021

[2026] HKCFI 2681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1632 of 2021

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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 24 November 2021 of the Torture Claims Appeal Board (“the Board’s Decision). The applicant put down the date of the Board’s Decision as 19 August 2021. This error will be rectified and amended below.

2.  The applicant asked for a hearing. However, she was absent at the hearing on 27 April 2026. I shall deal with her application on the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board, the Director of Immigration is the interested party, and the date of the Board’s Decision in respect of which relief is sought is 24 November 2021.

The applicant

4.  The applicant is a national of the Philippines. She is an illegal immigrant. She lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by paternal uncle due to a land dispute.    

5.  Details of her claim are set out in the Board’s Decision. See hyperlink

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001632_2021_files/the_Board's_Decision.pdf

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Notice of Decision dated 28 April 2021 (“Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 19 August 2021, the Board conducted an oral hearing for her. The applicant had given evidence and answered the Board’s questions.

9.  Having considered the evidence, the Board made the findings below.

(1)  The applicant had not provided any evidence to support her claim. [37]

(2)  It is unconvincing that her uncle intends to kill her as he had plenty opportunities if he intended to do so. [38]

(3)  The future risk as the applicant suggested is her own speculation. [39]

(4)  The state was not involved. [39] & [59]

(5)  State protection will be available if she returns to the Philippines. [64]

(6)  She will not be at real risk if she returns to the Philippines. Therefore, she is not entitled to non-refoulement protection. [97]

10.  For the above reasons, the Board dismissed her appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 1 December 2021 for leave to apply for judicial review of the Board’s Decision.

12.  In support of her application, the applicant said she did not understand the Board’s Decision. However, she was absent at the hearing.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, 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 or procedural unfairness or irrationality in the decision of the Board.”

16.  The applicant has raised no valid ground to challenge the Board’s Decision. The applicant has not given any explanation for her delay. For this reason, the Court should not extend time for her application.

17.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

18.  I refuse grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

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