CASTILLON ELLAINE ABAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 1859/2023

[2025] HKCFI 5539

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1859 OF 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.  On this court’s own motion, the name of the putative interested party be amended to “Director of Immigration”.

2.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.  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 October 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 3 October 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/HCAL001859_2023_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had failed to establish her non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board rejected and dismissed her appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 5 January 2023, which rejected the applicant’s non-refoulement claim.

Amendment

3.  In Form 86, the applicant named the Board as the putative interested party when the Director should be so named. 

4.  Thus, on this court’s own motion, the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

5.  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.

6.  In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, she would be ill-treated or killed by Joel as she was having an affair with his wife.

Withdrawal of the Leave Application

7.  By a letter dated 2 July 2025, the Director informed this court that the applicant stated that she would like to withdraw the Leave Application in her letter dated 25 June 2025, which was addressed to this court.  In her said letter, the applicant did not give any reason for the withdrawal save that she wanted to return to her home country as soon as possible.

8.  By a further letter dated 27 August 2025, the Director informed this court that the applicant was removed on 1 August 2025.

9.  There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition.  With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing even though she had previously requested one.

10.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

11.  Thus, it is not right to leave the action at large.  The applicant’s application to withdraw the Leave Application is therefore refused and this court will proceed to deal with the merits of the Leave Application.

Grounds for judicial review

12.  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).

13.  The applicant did not advance any ground for the intended judicial review in her Form 86, nor in her supporting affidavit dated 16 October 2023.

Discussion

14.  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).

15.  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 valid ground being advanced by the applicant for the intended judicial review.

16.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 24 March 2023 and the applicant was present.  Thus, the applicant did have the chance to present her case to the Board in person.

17.  After due consideration of the evidence and the oral testimony of the applicant, the Board accepted that the applicant was a lesbian with intimate relationship with Joel’s wife and because of this, she had disputed with Joel and Joel had assaulted her once.  However, the Board found that the ill-treatment did not attain a minimum level of severity and there was no indication that Joel intended to inflict severe harm or fatal attack on the applicant on purpose.  Hence, there was no future risk of being harmed or killed by Joel as alleged by the applicant.

18.  The Board also found that the problem the applicant faced was solely a personal dispute and localised in the applicant’s locality.  Thus, the Board concluded that the applicant could have reasonable state protection and internal relocation was a viable option for the applicant.

19.  After considering all the relevant materials, the Board found that the applicant’s claim based on all the applicable grounds under the USM failed.

20.  The assessment of evidence and risk of harm was primarily within the realm of the Board.  The Board was entitled to reach its decision.  The applicant’s alleged danger in her home country had indeed been duly assessed by the Board.  This court finds nothing wrong or unreasonable in the way the Board reached its decision. 

21.  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 errors 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.

22.  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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

Conclusion

23.  For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application is 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