Balioag Karen Kaye Tenorio v. Torture Claims Appeal Board

HCAL 1556/2023

[2026] HKCFI 3396

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1556 OF 2023

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 4 September 2023, 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 25 August 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001556_2023_files/the_Board's_Decision.pdf

2.The Board rejected the applicant’s non-refoulement claim as not substantiated on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 11 July 2022, which rejected her non-refoulement claim.

Amendments

3.The applicant named the Board and “NOM-REFFoulment Claims Pettition OFFice” as the putative respondents in Form 86, when only the Board should be the putative respondent. The applicant named the Director as the putative interested party but spelt the Director’s name wrong.

4.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a respondent at all.

5.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

6.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.

7.In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, she might be harmed or killed by her creditor due to an unpaid loan taken out by her mother on her behalf.

Disposal on paper

8.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

9.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).

10.The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affidavit dated 4 September 2023. In her affidavit, the applicant only mentioned that “they” might kill her when she went back to the Philippines, and asked that her petition be accepted until she could find a way to pay her creditor.

Discussion

11.First of all, the applicant’s danger from her creditor had been duly assessed but rejected by the Board. If she intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

12.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).

13.Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

14.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 26 June 2023. The applicant was present and was given the chance to present her case to the Board in person.

15.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. The findings of the Board in relation to the applicant’s claim were laid out in paragraphs 30 to 36 of the Board’s Decision.

16.In gist, given the applicant’s answers to the questions put to her during the hearing, the Board doubted that her claim was genuine. The applicant was unable to remember important issues such as the amount owed in respect of the loan, the amounts of money she had remitted to her mother for the payment of interest and the amounts of money remitted to her daughter’s father. The Board found it unbelievable that the applicant with 12 years of education would accept that her creditor had the power to have her deported from Hong Kong over a civil matter involving a loan. The Board was unable to give the applicant the benefit of the doubt and did not find the applicant to be credible.

17.On the evidence before the Board, the Board did not consider that the applicant faced a real risk of the proscribed harm if the applicant was refouled to the Philippines.

18.For the sake of completeness, the Board made an assessment on the viability of internal relocation for the applicant. The Board found that if the applicant felt she would be under threat in her village, she might relocate to elsewhere within the Philippines, find work and pay off her debt.

19.Thus, the Board concluded that the applicant was not at a real risk at the hands of her creditor and her claims for non-refoulement protection were not substantiated.

20.The Board did not consider availability of state protection to the applicant. However, as the Board found that the applicant did not face a real risk of the proscribed harm if the applicant was refouled to the Philippines, it is not necessary for the Board to consider the availability of state protection.

21.The finding of facts, including the assessment of evidence 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.

22.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 error 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.

23.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

24.For reasons aforesaid, the Leave Application is dismissed.

Dated the 10^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