TAGAPAN JAY ANN TAGUNA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1416/2023

[2026] HKCFI 4237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1416 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.   Extension of time to file the application for leave to apply for Judicial Review be refused; and

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 15 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 2 February 2023 (the “Board’s Decision”).

2.  In the Form 86, the Applicant named both the Board and the Director of Immigration (the “Director”) as the proposed respondents and the Board as proposed interested party.  Where the challenge is against the Board’s Decision only, the trite practice that the Board should be the proposed respondent whereas 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 attended in person.

Background

4.  The Applicant’s background, the basis and arguments in support of her claim can be found in the Board’s Decision, a hyperlink to which is included below[1]. In short, the Applicant came from the Philippines to Hong Kong to work as a domestic helper since 2015.  She remained in Hong Kong despite the termination of her employment in June 2021.  She claimed that she will be subject to serious harm or even be killed if she were to return to her home country, because her husband and her family members (the “Adversaries”) had threatened to harm her because the Applicant had an affair which led to her conceiving a child which unfortunately ended in a miscarriage.

The Leave Application is out of time

5.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.  However, the Form 86 was filed late for over 3 months.

6.  In AW v Director of Immigration and William Lam CACV 63/2015 (unreported, 3 November 2015), the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. 

7.  In the present case, the delay of over 3 months is significant.  No reason for the delay has been provided in the Form 86 or the Applicant’s supporting affidavit despite express requirement to do so in the Form 86.  At the Hearing, the Applicant at first denied that the application was late but she conceded the matter after I drew her attention to the date of filing on the Form 86.  She orally requested for a time extension but was unable to provide any concrete explanation as to why she was late.  She surmised that she might have gotten the letter from the Board late.  In my view, this does not amount to a credible or reasonable explanation.

8.  In my view, the most crucial factor in deciding whether to exercise my discretion to extend time is the substantive merits of this Leave Application.  If it is bound to fail, no meaningful purpose can be served by granting leave even if I am prepared to assume in favour of the Applicant that she has an innocuous explanation for the delay.  Hence, as a matter of expediency, I should focus on the merits of the Leave Application.

Merits

9.  It is trite law that:-

(1)   It has been repeatedly emphasised by the court that determination of the merits of a non-refoulement claim is essentially within the remit of the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

(2)   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, 22 December 2016) per Chow J. (as he was then) at §142.

10.  In the Form 86 and the accompanying supporting affidavit, the Applicant did not advance any grounds of review.  At the Hearing, the Applicant also confirmed with me that she had nothing more to add to the Leave Application. On account of her complete failure to advance any ground of review, the court should not grant any indulgence to allow the Leave Application to be made out of time.

11.  In any event, having examined the Board’s Decision, the papers 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 all applicable grounds; the burden of proof and standard of proof; correctly identified the issues and observed a high standard of fairness.

12.  Most importantly, I do not see any basis to interfere with the Board’s finding that there was plainly no real risk of threat.  As rightly found by the Board, the case is at best a domestic dispute. There was nothing to indicate a consistent pattern of gross and mass violations of human rights in the Philippines (§39).  Although the Board accepted that the Adversaries may be angry with the Applicant, there was nothing to indicate that their threats were anything more than hollow threats (§42).  At most, the Applicant’s husband only threatened to file charges for adultery against her in the Philippines (§44).

13.  The Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success.  Hence, I see no reason to grant a time extension.

Conclusion

14.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed as it was made out of time.

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