Ignacio Alma Agustin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1335/2022

[2026] HKCFI 1794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1335 OF 2022

Application for Leave to Apply for Judicial Review

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

Following:

Order by Deputy High Court Judge (Non-refoulement Claims) Jeffrey Chau:

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 a Form 86 filed on 25 November 2022 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 16 November 2022 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 24 May 2021 (the “DOI Decision”).

2.I amend the Form 86 on my own motion, naming only the DOI as the putative interested party.

3.The Applicant requested for a hearing of this application and she attended the same. When asked, she said that she had nothing to add.

Background

4.The Applicant is a national of Philippines.  In gist, she fears that she will be ill‑treated, harmed or killed by her boyfriend if she were to be refouled, because she refused to give him money.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1].  I shall therefore not repeat them.  Unless otherwise specified, the TCAB’s abbreviations and descriptions are adopted herein.

Discussion

5.The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and this 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

7.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.The Applicant did not state any grounds on which the relief is sought, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.

9.As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [98‑137, 155-205].  The TCAB was nuanced and meticulous in evaluating the evidence.  In particular, the TCAB found, and on the basis of admission made at the hearing by the Applicant, that she would be able to safely return to the Philippines (in places such as Davao Manila or Cebu) without fear of being threatened by her boyfriend [19, 161].  Having considered all material evidence, it was concluded that there was no foreseeable risk to the Applicant.  The TCAB considered that the Applicant’s claims were bare assertions without proof to support them [96] and that none of the alleged threats resulted in her being injured, nor had she or her family reported to the authorities or police [101, 102].  It also seemed illogical for her boyfriend to have any real intention of carrying out a threat to deprive him of the source of funds [123].  In any event, being a non-state actor with no apparent ability to track her [105-116], state protection [138-154] and internal relocation [195-205] would be available to her.

10.All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed.

Dated the 31^st day of March 2026.

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