Rubio Evelyn Dela Tierra v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 158/2023

[2026] HKCFI 3131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 158 of 2023

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 the Applicant being absent in open court;

Order by Deputy High Court Judge (Non-Refoulement Claims) Martin Wong:

1.  The Applicant’s Form 86 be amended to name the DOI as a putative interested party; and

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 6 February 2023 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 1 February 2023 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) 26 October 2021 in refusing the Applicant’s non-refoulement protection claim. She named the TCAB as both the proposed respondent and an interested party.

2.I amended the Form 86 on my own motion to name the DOI as a putative interested party instead.

3.The Applicant requested for a hearing but she was absent at the scheduled hearing on 12 May 2026. From the court record, the Notice of Hearing dated 14 April 2026 was sent to the same address stated in the Form 86 and the affidavit filed in support, and the same address stayed unchanged when the Immigration Department provided updated addresses to the court on 9 March 2026.

4.Bearing in mind what Barma JA held in Re Abdus Salam [2019] HKCA 1091 at [19], i.e. in an application for leave to bring judicial review proceedings, it is not essential for the applicant to attend an oral hearing, when the applicant fails to turn up at an oral hearing he/she had requested, it should be regarded as a decision to forego the right to the requested oral hearing and the court can deal with the application on paper.

5.I therefore decided to proceed to deal with this application on paper notwithstanding the Applicant’s absence at the hearing.

Background

6.The Applicant is a national of the Philippines. She seeks non-refoulement protection on the basis that if she was returned, she would be harmed or killed by her husband over a financial dispute between them in 2017. Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

7.In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. 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, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

8.In both of the Form 86 and her affidavit filed in support of the application, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

9.Looking at the TCAB Decision, the TCAB bore in mind the correct legal principles in respect of each of the four applicable grounds under the USM [6-16].

10.Applying the correct applicable legal principles, the TCAB decided not to hold an oral hearing for the Applicant’s appeal and took into consideration the Applicant’s case and evidence on paper. After thorough analysis and assessment of the same, came to the findings and conclusions that none of her allegations or grounds was made out [17-42].

11.Further, the TCAB found and concluded that internal relocation was in any event available to the Applicant [43-44].

12.I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

13.For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

Dated the 8^th day of June 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