Echenique Nimfa Nabor v. Torture Claims Appeal Board
Read the full judgment text of HCAL 1695/2021 on BabelCite. This High Court CFI judgment was delivered on 27 May 2026.
1. By way of Form 86 dated and filed on 15 December 2021, 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 8 September 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
Cites 8 cases
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HCAL 1695/2021 [2026] HKCFI 3043 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1695 OF 2021
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:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 15 December 2021, 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 8 September 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant was unable to make out her claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 22 April 2021 and confirmed the same, which rejected her non-refoulement claim. Late application 3.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had 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. 4.However, the applicant filed Form 86 on 15 December 2021, which was 3 months and 7 days after the Board’s Decision (made on 8 September 2021). The applicant was hence late for 7 days in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application. 5.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:
6.The applicant did not make any application for extension of time and provided no explanation for the delay when she filed the Leave Application. At the oral hearing before this court, the applicant simply said that she did not know why she was late in filing the Leave Application. 7.Although a delay of 7 days is not substantial, there is simply no reason for this court to grant an extension of time for the applicant to file the Leave Application when no explanation was given by the applicant at all. More importantly, there is no merits in the intended judicial review as discussed below. 8.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone. 9.However, for the sake of completeness, this court will still examine the merits of the Leave Application. The applicant’s case 10.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. 11.In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, she would be harmed, ill-treated and/or killed by her ex-boyfriend Donato with whom she had domestic problems in the past, which, on some occasions, involved physical abuse. Oral hearing 12.The applicant requested for an oral hearing of the Leave Application and her case was heard on 14 May 2026. 13.When this court asked the applicant for the grounds of her intended judicial review, she merely replied that she did not want to go back because the threats from her ex-boyfriend was still there, she was married in Hong Kong for almost 2 years and her dependent visa application was being processed. 14.The applicant had in fact raised many grounds for her intended judicial review in her Form 86, her supporting affirmation dated 15 December 2021 and her written submission dated 22 April 2026. However, when this court asked her to elaborate on those grounds, the applicant repeated that she did not want to go back to the Philippines because the threats from her ex-boyfriend was still there, and she added that her ex-boyfriend tried to take away her child, her parents were looking after her child, and her ex-boyfriend had connections with politicians and the police. Grounds for judicial review 15.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). 16.As aforesaid, the applicant had raised many grounds for her intended judicial review in her Form 86, her supporting affirmation dated 15 December 2021 and her written submission dated 22 April 2026, which are all very general allegations. 17.In Form 86, under the heading ‘GROUNDS ON WHICH RELIEF IS SOUGHT”, the applicant merely stated some very general grounds which were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. The applicant is no exception. 18.The relevant contents of the applicant’s affirmation dated 15 December 2021 were basically a reiteration of the contents in her Form 86 under the heading ‘GROUNDS ON WHICH RELIEF IS SOUGHT”. 19.Similarly, the contents of the applicant’s written submission dated 22 April 2026 were again all very general. The applicant also reiterated her fear of harm from her ex-boyfriend, mentioned that she would face death as a consequence of refoulement, and challenged the Board’s finding on the availability of state protection. 20.As the applicant is relying on those grounds as mentioned, this court will deal with the grounds as discussed below. Discussion 21.This court will first deal with the contents in Form 86 under the heading ‘GROUNDS ON WHICH RELIEF IS SOUGHT” and the relevant contents of the applicant’s affirmation dated 15 December 2021. 22.The relevant parts of Form 86 under the heading “GROUNDS ON WHICH RELIEF IS SOUGHT” are reproduced as follows:-
23.In paragraphs 5, 6 and 7 under the heading “Factual Background” of her supporting affirmation dated 15 December 2021, the applicant asserted the same grounds as stated in paragraphs 6 and 7 of the grounds quoted above. 24.Most of the grounds raised by the applicant are very general, vague and without any specificity. The applicant failed to elaborate on any of the grounds at the oral hearing before this court. Without the applicant’s clarification, this court can only rely on what the applicant submitted in writing to understand her case. 25.From what the applicant had written, it seems that the applicant was alleging that:-
26.First of all, it is not true that there was no oral hearing before the Board. The Board held an oral hearing on 4 August 2021 to assess the applicant’s appeal/petition and the applicant appeared in person. 27.Thus, contrary to what the applicant alleged, she was given the chance to present her case and grounds of appeal to the Board in person at an oral hearing. 28.Given that the applicant did appear at the Board’s hearing and she did give evidence, there is absolutely no basis for her to accuse the Board for failing to give her a fair opportunity to keep forward her submissions in an oral hearing. 29.The applicant alleged that the Board did not invite her to give written submissions and evidence. However, the applicant had lodged a Non-refoulement Claim Form (“NCF”) dated 17 March 2021 and gave details of her case. She also lodged her Notice of Appeal/Petition containing grounds of appeal to the Board. 30.If the applicant did have further written submissions or evidence to submit to the Board, she could have done so at the oral hearing before the Board. It is the applicant’s duty to establish her claims before the Board and she should present whatever evidence and submissions, written or oral, so as to satisfy the Board that she is entitled to non-refoulement protection. It is not right to suggest that the Board has to invite her to submit written submissions and evidence before she would do the same. 31.In fact, as can be seen in paragraph 11 of the Board’s Decision, the applicant confirmed to the Board the truth and correctness of all materials in the Hearing Bundle and that she wished to adopt the same as her evidence in the appeal. No further evidence was submitted in advance of or during the appeal on which the applicant sought to rely. 32.The allegation that the Board relied on materials and information that were unofficial source of news, hearsay and outdated cases lacks specificity. The applicant failed to identify which pieces of information and materials she alleged were wrong for the Board to rely on. On the contrary, as can be seen in the Board’s Decision, the Board did consider extensive, fully-referenced COI when considering whether state protection was available and internal relocation was viable to the applicant. Thus, there is simply no substance in the applicant’s allegation in this regard. 33.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. 34.Thus, the general assertions put forward by the applicant, which merely contained “key words” such as the Board’s Decision was unreasonable and irrational, or that there was procedural unfairness, cannot help the applicant at all. 35.In her written submission dated 22 April 2026, the applicant asserted that her life was not safe, her problems were very severe, she had a high risk of being tortured by her enemies, and she would face the death consequence, etc. 36.However, the applicant’s risks and danger upon refoulement had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. 37.The remaining contents of the written submission merely contained key words such as the decision was wrong, unreasonable and irrational; the decision-maker(s) failed to apply high standard of fairness and was procedurally unfair, they failed to give reasons justifying their decisions and did not analyze her claims properly, etc. 38.Again, these are all general assertions without particulars which cannot be effective grounds to support a judicial review (see Re Mizan Sikder ; Re Aziz Nasir ; and Re Kharsu Numan, supra). 39.The applicant further challenged the Board’s finding on state protection and stated that there was “Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exist in India and misdirecting himself as to the extended meaning of state protection” (Underline added). The applicant was basically saying that the political situation of her own country was unstable, and that the ruling government was unable to control the current unstable political situation, etc. 40.The applicant is in fact a Philippine national and her case was assessed against her risk upon return to the Philippines, not India. This clearly indicates that the applicant was merely copying the contents from somewhere, without considering even whether the contents suited her own situation. The applicant’s non-refoulement claim was based upon her fear of her ex-boyfriend, and not on a political issue. 41.The applicant’s comment that the Board’s Decision disappointed her is not a valid ground whatsoever. 42.Finally, the fact that the applicant’s dependent visa application was being processed is completely irrelevant to the Leave Application. It is not a ground for the intended judicial review at all. 43.Thus, none of the matters raised in the applicant’s Form 86, her supporting affirmation dated 15 December 2021, her written submission dated 22 April 2026, as well as her oral evidence given at the hearing before this court, constitutes a valid ground in challenging the Board’s Decision. 44.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). 45.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. 46.As aforesaid, the Board held an oral hearing on 4 August 2021 to assess the appeal/petition by the applicant. The applicant was present and was given the chance to present her case to the Board in person. 47.The Board had laid out its material findings of fact of the applicant’s case in paragraphs 39 to 43 the Board’s Decision, and it is not necessary for this court to repeat the same here. 48.In gist, the Board accepted the basic facts of the applicant’s case that Donato had physically assaulted her in the past and the applicant still subjectively feared him and believed he might harm her if she were to return to the Philippines. However, the evidence was that Donato had not harmed her since around 2016 and that the applicant had been successful in being able to stand up to him and/or to avoid him. 49.The Board also found no, or no reliable evidence to show (and the Board did not accept) that (1) Donato would harm or kill the applicant if she were to return to the Philippines now; (2) the applicant faced risk throughout the Philippines; (3) the applicant suffered injuries to the required severity; and (4) the state of the Philippines was unwilling to help the applicant for a Convention reason. 50.The Board further found that Donato was a non-state actor in the applicant’s alleged situation. The applicant’s case had failed to satisfy the elements of torture as defined in section 37U of the Immigration Ordinance. There was also no Convention reason for the applicant’s ill-treatment, if any. 51.The Board had discussed the availability of state protection to the applicant in paragraphs 56 to 62 of the Board’s Decision and found from COI that state protection would be available and accessible to the applicant. 52.Further, although given its findings that the applicant did not face a real and current risk on any of the applicable grounds under the USM and hence the Board was not strictly required to make an assessment on the viability of internal relocation for the applicant, the Board still did so as a matter of caution. In paragraphs 88 to 90 of the Board’s Decision, the Board had addressed the applicant’s concerns about internal relocation and decided that there was no reason why the applicant could not relocate to other parts of the Philippines and stay there without undue hardship. 53.Thus, the Board concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM. 54.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. 55.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. 56.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 57.For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for devoid of merits. Dated the 27th day of May 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
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Cases cited in this judgment