Alvior Lady Lyn Ercilla v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 418/2023

[2026] HKCFI 3775

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 418 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 documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Sabrina Ho:

1.  The Applicant’s Form 86 be amended to name the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the putative respondent

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 20 March 2023 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office dated 13 March 2023 (the “Board”, the “Board’s Decision”).

2.The Applicant named the Director of Immigration (the “Director”) as proposed Respondent of the Leave Application. I amend the Form on my own volition to name the Board as the putative Respondent.

3.In the Affidavit in support of the Leave Application (the “Affidavit”), while the Applicant stated that she intends to apply for judicial review against the “Decision of the Director of Immigration”, she exhibited a copy the Board’s Decision. I will take it that the Applicant’s Leave Application covers only the Board’s Decision.

4.The Applicant requested an oral hearing for the Leave Application, which took place on 15 June 2026 (the “Hearing”). At the Hearing, the Applicant said that she has nothing to add orally.

Background

5.The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

6.In the Affidavit in support of the Leave Application, the only ground raised by the Applicant was that, her claim was not considered properly by the Director of Immigration.

7.The relevant legal principles are well established. The Court’s role in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: see Nupur Mst v Director of Immigration [2018] HKCA 524 at para. 14; Re Limbu Birkhaman [2019] HKCA 50 at para. 11. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

8.Having considered all the relevant materials before me, I do not consider the Applicant’s intended challenge against the Board’s Decision to be reasonably arguable with any realistic prospect of success.

9.I have reviewed the Board’s Decision in detail. The Board had fully considered the Applicant’s evidence and her grounds for challenging the Director’s decision in refusing her claim for non-refoulement protection. On the facts, the Board found that the Applicant’s case to be incredible, which contain only vague and bare assertions: see the Board’s Decision paras. 28-52. Alternatively, even taking the Applicant’s case to the highest, the Board found that the Applicant had failed to show that there would be any real risk that she would be subject to serious harm if she returns to the Philippines: see the Board’s Decision paras. 53-69. In addition, the Board considered that the Applicant had failed to show that there was a failure of state protection: see the Board’s Decision paras. 70-86. The Board further took the view that there were internal relocation options available to the Applicant: see the Board’s Decision paras. 109-129. On the above bases, the Board found that the Applicant would not face any Persecution Risk, BOR 2 Risk, BOR 3 Risk or Torture Risk[2] if she returns to Philippines and rejected the Applicant’s appeal: see the Board’s Decision paras. 87-108, 130. I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

10.Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para. 23. I have considered all the relevant materials in reaching the present decision.

Conclusion

11.For the reasons stated above, I will dismiss the Leave Application.

Dated the 10^th day of July 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