Humarang Adora Ortega v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1325/2025

[2025] HKCFI 6143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1325 of 2025

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Levy:

1.  There shall be no extension of time be granted to the applicant for the filing of the Form 86.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Background

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 10 June 2025, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 28 August 2024 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 22 February 2024 rejecting the applicant’s non-refoulement claim based on all applicable grounds. The Board’s Decision is set out in the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001325_2025_files/the_Board's_Decision.pdf

2.The basis of the applicant’s claim was that, if refouled to Philippines, she would be harmed or killed by her maternal uncle who wanted to get the family house and the land. The reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.On 16 July 2025, the Removal Assessment and Litigation (Removal and Deportation) Section (1) of the Immigration Department faxed a letter to the court, informing the court that the applicant would like to withdraw her judicial review application. Enclosed with the said letter was the applicant’s signed memo English dated 15 July 2025. In the memo, the applicant stated that she would like to withdraw the Leave Application as her issues at home had been resolved and she could return home. The applicant had separately sent a letter to the court, confirmation the same. In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

4.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The applicant’s Form 86 and the supporting affirmation provided no such grounds.  

6.As the Courts have repeatedly stated, 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.[3] In the present case, the Board did not accept the applicant’s evidence as believable as it was problematic and inconsistent. The Board rejected the applicant’s claims that she had been threatened by her uncle because of a land dispute. The Board further found that her delay of 2 years in raising the non-refoulement claim had further undermined her credibility. The Board concluded that the applicant would not face a real risk of serious harm if refouled. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

7.Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86 or otherwise. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[4].

8.Another matter I need to consider is the delay. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date of the Board Decision. The applicant was late for more than 7 months, which was lengthy. The applicant provided no explanation at all for the delay. In the circumstances, I’d be disinclined to grant leave for an extension of time.

Withdrawal application

9.Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.

Orders

10.There shall be no extension of time be granted to the applicant for the filing of the Form 86.

11.The applicant’s application for leave to apply for judicial review be dismissed.

Dated the 19^th day of December 2025

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