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HCAL 911/2026
[2026] HKCFI 3399
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 911 OF 2026
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BETWEEN
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Plaza, Girle Lumantad |
Applicant |
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and |
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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 13 May 2026, 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 13 March 2026 (“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/2026/HCAL000911_2026_files/the_Board's_Decision.pdf
2. The Board rejected the applicant’s claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 16 December 2025 (“the Director’s Decision”) and confirmed the same, which rejected her non-refoulement claim.
Amendments
3. The applicant named both the Board and “Non-Refoulement Claims Petition Office” as the putative respondents and “Director of Immigration Headquarters” as the putative interested party in Form 86, when only the Board should be the putative respondent, and the Director should be the putative interested party.
4. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.
5. This court therefore 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 ill-treated or killed by her ex-boyfriend Juvy Mahilum Sr. (“Juvy”) as she separated from him and did not accede to his monetary request.
Oral hearing
8. The applicant requested for an oral hearing and her case was heard on 2 July 2026.
9. At the hearing, the applicant told this court that she would rely on the grounds stated in the written submission annexed to her supporting affidavit/affirmation dated 13 May 2026. She added that she was an asylum seeker, overstayed on 22 September 2025, surrendered to the Immigration Department on 26 September 2025, she could not go back to her country because she had a situation there and she was detained for 21 days. Afterwards, she applied for non-refoulement protection with the help of a duty lawyer.
10. When this court asked her what was wrong with the Board’s Decision, she merely replied that she wanted to find out if the Board’s Decision was correct by filing the Leave Application.
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 advance any ground for her intended judicial review in Form 86. In a written submission annexed to her supporting affidavit/affirmation dated 13 May 2026, the applicant first mentioned that she did not agree with the Director’s Decision, and it would be harmful to her and dangerous to her life if she returned to the Philippines.
13. The applicant then went on to make new claims such as (1) Juvy was a police officer; (2) Some of Juvy’s relatives were members of the New People’s Army (“NPA”); (3) Juvy had friends who could help him to do harmful things to her, and some of them were drug addicts, some were ex-convict and some were politicians; (4) the reasons for her to return to the Philippines only once during her 8 years in Hong Kong and why she remained at home all the time; (5) Juvy threatened the applicant’s sister that he would conduct a warrant of arrest on the applicant for owing him money that he spent for her application for working as domestic helper; (6) Juvy’s father would help and support Juvy to do harmful things to her; (7) Juvy’s parents were eager to take her sons because they were their first grandsons; and (8) Juvy’s parents had connections with the NPA, etc (collectively, “the New Claims”).
14. She also elaborated the reason why she got back together with Juvy after the alleged attack when she was pregnant with her younger son, as the interpreter only summarised her response and mentioned only the specific situation.
15. Lastly, the applicant asked to be given a chance and to be released under recognizance.
16. As aforesaid, at the oral hearing, the applicant only reiterated the procedural history of her non-refoulement claim, and wanted to see if the Board’s Decision was correct by filing the Leave Application.
Discussion
17. First of all, the New Claims made by the applicant in her written submission were not presented before the Board for assessment of her non-refoulement claim and her appeal/petition.
18. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.
19. Thus, the applicant cannot ask this court to assess or re-assess her non-refoulement claim based on matters that had not been presented to the Board.
20. In fact, the Board had explicitly found that, even assuming Juvy did have connection with the police (as he had passed the examinations and probably became a licensed police officer), there was a lack of evidence showing that Juvy could locate the applicant nationwide, nor did he have the resources and network to search for the applicant throughout the country (see paragraph 53 of the Board’s Decision).
21. Moreover, the Board had specifically asked the applicant as to whether Juvy indicated that his father would help him to go after the applicant. The applicant confirmed that the dispute was just between Juvy and herself (see paragraph 35 of the Board’s Decision).
22. Her complaint about the interpreter having only summarised her response was unfounded. The ability of the applicant to have allegedly noticed the inaccurate interpretation was indicative of her English ability and proficiency. If the applicant had indeed noticed any inaccurate interpretation during the Board’s hearing, she should have pointed that out to the Board there and then.
23. Finally, her wish to be given a chance and to be released from detention was not a ground to challenge the Board’s Decision at all.
24. Thus, none of the matters put forward by the applicant in the said written submission or at the oral hearing before this court can help the applicant to advance her intended judicial review.
25. 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).
26. Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision as aforesaid.
27. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 20 February 2026 via video conferencing system. The applicant was present and was given the chance to present her case to the Board in person.
28. As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims.
29. The Board’s observation on the applicant’s evidence were laid out in paragraph 39 of the Board’s Decision. The Board was not convinced that Juvy would put his verbal threats into action. His threats had been going on since September 2018, and no physical violence had ever been inflicted on the applicant or her family members, including her sons with Juvy. Further, the Board was not convinced by the applicant’s explanation of not deactivating her Facebook account, which in fact suggested that the alleged threatening messages from Juvy were not imminent threats as such, otherwise the applicant would have deleted her Facebook account as quickly as possible.
30. The Board’s decisions regarding whether there was any real and foreseeable risk, the viability of internal relocation and the availability of state protection for the applicant were laid out in paragraphs 49 to 101 of the Board’s Decision. In gist, the Board found no serious physical or mental harm had ever been inflicted upon the applicant by Juvy, and that any such alleged harm or injury had not met a minimum level of severity. The evidence did not establish any substantial ground for believing that there would be a foreseeable and real risk of the applicant being subjected to serious harm upon her return to the Philippines.
31. Moreover, internal relocation was a viable option to the applicant, and it was not unduly harsh or unsafe for the applicant to relocate to other parts of the country, especially Davos City and Manila. The Board also found from extensive, fully-referenced country of origin information (“COI”) that despite setbacks, there was systemic sufficiency of state protection in the Philippines and there was nothing particular to the applicant’s circumstances that the Philippine government would be unable or unwilling to afford her the requisite protection.
32. The Board further found that even if the Board adopted the applicant’s account, the dispute between the applicant and Juvy was a private one which did not have any connection with the Philippine government. There was no evidence of state acquiescence and none of the Convention reasons applied to the applicant’s case. The applicant had proven neither a real nor an immediate risk under the USM, as reasonable state protection was available to her and internal relocation was a viable option.
33. Thus, the Board concluded that the applicant’s appeal/petition and her claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the USM.
34. The finding of facts, including the assessment of evidence, COI 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.
35. 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.
36. 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
37. For reasons aforesaid, the Leave Application is dismissed.
Dated the 21st day of July 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:21/07/2026
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: 21/07/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 27829
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 2223/25 (Formerly RBCZ 5002170/25)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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