Malugdos Leilani Gabuyo v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 502/2023

[2026] HKCFI 3932

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 502 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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 17 March 2023 of the Torture Claims Appeal Board (“the Board’s Decision), which dismissed her appeal against the Director’s Decision refusing her non-refoulement claim as mentioned below.

2.The applicant appeared before the Court on 29 June 2026.

The applicant

3.The applicant is a national of the Philippines. She is an illegal immigrant. She lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her creditor because she was unable to repay her debt.    

4.Details of her claim are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000502_2023_files/the_Board's_Decision.pdf

The Director’s Decision

5.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.By way of Notice of Decision dated 27 May 2022 (“Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 2 March 2023, the Board conducted an oral hearing for her. The applicant had given evidence and answered the Board’s questions.

8.Having considered the evidence, the Board made the findings below.

(1)  From the evidence, the applicant was only threatened. She did not suffer any physical or mental injury that would satisfy the level of severity of BOR 3 risk. [37] & [45]

(2)  She failed to establish her claim on Torture risk or BOR 3 risk [37]-[45]

(3)  She also failed to establish her claim on BOR 2 risk [52] or Persecution risk [63].

9.For the above reasons, the Board dismissed her appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 30 March 2023 for leave to apply for judicial review of the Board’s Decision.

11.In support of her application, the applicant has raised that the adjudicator did not take time to consider her safety; that the adjudicator did not understand her documents in the language of the Philippines. She tried to get the translator to assist, but the translator did not help her.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she had presented her full story to the Board and the Board’s Decision is not wrong.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

15.In view of her admission that the Board’s Decision is not wrong, her reasons under paragraph 11, which are her bare assertions, have no significance.

16.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

17.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 15^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