TUGAOEN MYLENE CABISURA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 968/2022

[2026] HKCFI 1907

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 968 of 2022

Application for Leave to Apply for Judicial Review

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

Following;

1.   Form 86 be amended, naming only the Director of Immigration 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 dated 20 September 2022 (“Form 86”), the Applicant seeks leave to apply for judicial review (“Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“Board”) which, as stated below, was dated 13 September 2022 (“Board’s Decision”), which affirmed the Decision of the Director of Immigration (“Director”) dated 4 November 2021.

2.  The Applicant did not request an oral hearing.  I determined her Leave Application on the papers accordingly: O.53, r.5(3) of the Rules of the High Court (Cap 4A).

3.  The Form 86 incorrectly named both the Director and the Board as putative interested parties.  I therefore amend the Form 86 on my own motion to name only the Director as the putative interested party.

Background

4.  The Applicant is a national of the Philippines. Her background and the basis of her application for non-refoulement were set out in detail in the Board’s Decision at this hyperlink.[1]  I will not repeat them here.  Unless otherwise specified, I adopt the abbreviations in the Board’s Decision.

5.  In short, the Applicant claimed to be in fear of being harmed or killed by her father on account of her sexual orientation.  She said her father had assaulted her on a number of occasions when she was about ten years old, told her he never wished to see her again when she returned briefly to her home village in 2018, and threatened to kill her over the phone when she was in Hong Kong in 2021.

Discussion

6.  Leave application is meant to be a filtering process and the court is not expected to give elaborate reasons for its decision: Re Zunariyah [2018] HKCA 14 at §23. I therefore set out below brief reasons for my decision, which I have reached upon considering all the materials before me.

7.  The court’s role in judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court adopts in non-refoulement cases an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1).  There must be a reasonably arguable case, namely one which enjoys a realistic prospect of success, before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §§14-17.

8.  In a proper Form 86, an applicant is required to state the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) at §142.  He or she is also under a duty to make full and frank disclosure of material facts: Kan Hung Cheung v The Director of Immigration [2008] HKC 323 at §§14-17.

9.  In this Leave Application, the Applicant has not stated any ground of judicial review.  She has not identified any error of law or procedural unfairness or irrationality in the Board’s Decision to demonstrate a reasonably arguable case.

10.  In any event, I have reviewed the Board’s Decision and I do not detect any error of law, procedural unfairness or irrationality.  The Board assessed the evidence in detail and gave adequate reasons for its decision.  In particular:

(1)   The Board generally accepted the Applicant’s evidence about ill-treatment by her father due to her sexual orientation during her childhood, but rejected her claim that her father called her out of the blue in 2021 without having contacted her for more than 20 years to threaten her: §§75-77. The Board found that the Applicant’s father made no effort to locate or contact her for approximately 22 years.  It regarded the Applicant’s fear that her father may kill her if she returned to the Philippines to be exaggerated or not genuinely held: §§77-78.

(2)   In any case, the Board found no evidence that the State of the Philippines played any part, active or passive, in any ill-treatment of the Applicant by her father.  The Board noted that the Applicant had not complained about her ill-treatment to the police or other authorities.  The Board found that reasonable state protection would be available to her if necessary, considering the COI on protection of women from violence and general tolerance of the LGBT community in the Philippines: §§56, 78-83. 

(3)   Further still, the Board regarded any potential risk of harm to the Applicant to be localised, there being no credible evidence that her father has the intention or means to locate and harm her.  The Board considered that it would not be unsafe, unduly hard or otherwise unreasonable for the Applicant to relocate to other cities such as Manila and Cebu if necessary, having regard to her personal circumstances, education and extensive work experience: §§87-89.

11.  In the premises, I conclude that the Applicant’s intended challenge against the Board’s Decision is not reasonably arguable.

Intention to withdraw

12.  After the Court considered the Leave Application, on 21 April 2026, it received a letter dated 15 April 2026, in which the Applicant asked to “close the case” and return to her home country (which she now considers safe to do).  Given the Applicant’s intention to withdraw the Leave Application, it is strictly not necessary for the Court to adjudicate on its merits.  In any event, this Court considers, for the reasons set out above, that the case does not meet the threshold for granting leave to apply for judicial review.

 Conclusion

13.  I make an order that the Form 86 be amended in the manner set out above and that 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