Magbanua Kristine Cristales v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 245/2023

[2026] HKCFI 3135

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 245 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 oral submissions by the Applicant 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 TCAB only as the putative respondent and the DOI only 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 17 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”) dated 29 July 2022 in refusing the Applicant’s non-refoulement protection claim. She named the TCAB as the proposed respondent as well as an interested party.

2.I amended the Form 86 on my own motion to name the TCAB only as the putative respondent and the DOI only as a putative interested party.

3.The Applicant requested for a hearing and she attended the same.

Background

4.The Applicant is a national of the Philippines. She seeks non-refoulement protection on the basis that if she was returned, she would be killed by her husband over extra-marital relationship issues. 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

5.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).

6.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.

7.At the hearing, when asked if she had anything to add, the Applicant informed me of her current medical conditions, i.e. hyperthyroidism and thyrotoxicosis, and that she wanted to continue to receive treatment in Hong Kong for the same. However, these matters have no relevance to the issues at hand.

8.Looking at the TCAB Decision, the TCAB took into consideration the Applicant’s case and evidence [10-11], including the relevant Country of Origin Information and her testimony at the hearing before it [27-28].

9.The TCAB also bore in mind the correct legal principles in respect of each of the four applicable grounds under the USM [12-19], as well as in approaching the assessment [30].

10.After thorough analysis and assessment, apart from the fact that the Applicant’s husband did use actual physical force on her, the Applicant’s allegations or any of the grounds were not made out [20-40].

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

Conclusion

12.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 9^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