Mercado Girlie Balucan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 403/2023

[2026] HKCFI 3774

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 403 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 Form 86 be amended by naming 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 17 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 25 November 2022[1] (the “Board”, the “Board’s Decision”).

2.The Applicant named the Board as the interested party in the Form. I will amend the Form on my own motion to name the Director of Immigration (the “Director”) as the putative interested party instead.

3.In the Affirmation in support of the Leave Application (the “Affirmation”), the Applicant exhibited a copy of the Board’s Decision, and stated that she could not return to her country because her life is unsafe there.

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 does not have anything 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[2] for reference.

Leave Application out of time

6.The Board’s Decision was issued on 25 November 2022. However, the Form was only filed on 17 March 2023, 20 days beyond the 3 months prescribed for filing an application for leave for judicial review of the Board’s Decision: see Order 53 Rule 4 RHC (Cap 4A).

7.No application has been made by the Applicant for extension of time for her to bring the Leave Application. No explanation has been provided by the Applicant for the delay, whether in the Form or the Affirmation.

8.In considering whether time should be extended for an application for leave for judicial review, the Court will consider, amongst other things, the following:

a.  The length of the delay;

b.  The explanation of the delay;

c.  The merits of the substantive application;

d.  The prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time; and

e.  The question of general public importance.

See: AW Director of Immigration and William Lam CACV 63/2015, 3 November 2015 at para. 27

9.As I have pointed out above, there was no application for extension of time and no explanation for the delay. Further, the Leave Application has no merits, for reasons which I will explain below. Hence, even if there had been any application by the Applicant for extension of time to apply for leave for the judicial review, I would have rejected it.

Leave Application unmeritorious

10.Save for stating in the Affirmation that she cannot go back to the Philippines as her life is not safe, the Applicant has not identified any ground in support of the Leave Application, whether in the Form or the Affirmation.

11.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.

12.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.

13.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 failed to establish that she feared harm by her deceased husband’s family, her cousin or her cousin’s family if she returns to the Philippines. The Board further found that the Applicant’s alleged fear that she may be prosecuted for her husband’s death was purely speculative: see the Board’s Decision paras. 30-39. 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[3] if she returns to Philippines and rejected the Applicant’s appeal: see the Board’s Decision paras. 40-49. I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

14.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

15.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