Gelvolea Esperanza Torre v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 259/2023

[2026] HKCFI 3772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 259 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of 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 and the Director of Immigration as the putative interested party.

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 21 February 2023 (the “Form”), the Applicant applied for leave to apply for judicial review against the Decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office dated 2 February 2023 (the “Board”, the “Board’s Decision”) and the Decision of the Director of Immigration dated 20 January 2022 (the “Director”, the “Imm Decision”) (the “Leave Application”).

2.The Imm Decision is not susceptible to judicial review as it has been superseded by the Board’s Decision once an appeal against it to the Board has been pursued by the Applicant: see Re Moshsin Ali [2018] HKCA 549 at para. 45. Thus, I will treat the Leave Application to cover the Board’s Decision only.

3.I amend the Form on my own volition to name the Board as the putative Respondent and the Director as the putative interested party.

4.In the Affirmation in support of the Leave Application (the “Affirmation”), the Applicant exhibited a copy of the Board’s Decision. While the Applicant claimed in the Affirmation that details of her grounds in support of the application will be provided later, this has not been done.

5.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.

Background

6.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

7.The Applicant has not identified any ground in support of the Leave Application, whether in the Form, the Affirmation or at the Hearing.

8.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.

9.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.

10.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 assertions that she fears that creditors of her deceased husband’s alleged creditors would kill/harm her if she returns to the Philippines to be incredible. The Board found that the Applicant has failed to establish any substantial grounds which support her claim that she will face any real risk of ill-treatment if she returns to the Philippines: see the Board’s Decision paras 29-35. 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. 36-44. I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

11.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

12.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