Salona Jemboy Nanale v Torture Claims Appeal Board/

HCAL 457/2023

[2026] HKCFI 4036

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 457 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) Val Chow:

1.  Form 86 be amended on the court’s own motion as follows:-

a.  The Torture Claims Appeal Board / Non-Refoulement Claims Petition Office be named as the Putative Respondent; and

b.  The Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 23 March 2023 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 17 February 2023 (the “Board’s Decision”).

2.In the Form 86, the Applicant has named both the Board and the Director of Immigration (“Director”) as the proposed respondents and the proposed interested parties. Given that the challenge is directed towards the Board’s Decision (which in any event supersedes the relevant decision made by the Director), the Board should be the proposed respondent whereas the Director should be the proposed interested party. I make an order to amend the Form 86 accordingly on the court’s own motion.

3.An oral hearing was requested by the Applicant. It took place before me on 13 July 2026 (the “Hearing”) and the Applicant attended in person.

Background

4.The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details 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. The Applicant is from the Philippines. The gist of the Applicant’s claim is that he will be seriously harmed or killed by his former business partner (the “Adversary”) with whom the Applicant had a financial dispute over the sales proceeds generated from their business.

Discussion

5.The leave application is intended to be a filtering process and elaborate reasons are not necessary, see: Re Zunariyah [2018] HKCA 14 at §23. Hence I shall set out the brief reasons for my decision below.

6.The relevant general principles are well established. Judicial review does not operate as a further avenue of appeal. Though in non-refoulement cases, the Court applies a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court must not usurp the role of the Board. Assessment of evidence, country of origin information (“COI”) materials, risk of harm, availability of 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 §14.

7.It is trite law that, an applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection HCAL 21/2015 (unreported, 22 December 2016) per Chow J (as he was then) at §142. Where a Form 86 contains only general assertions without particulars as to underlying facts or matters upon which the Board’s Decision is said to be erroneous, such assertions are not effective grounds to support a judicial review, see: Haider Khalil [2021] HKCA 223 at §16.

8.In the Form 86, the Applicant did not provide any grounds in support of the Leave Application. In his supporting affidavit, the Applicant merely made a general assertion that the Board and the Director disregarded the danger to the Applicant should he be returned to his home country. Such blanket assertion fails to meet the requisite standard as set out above.

9.At the Hearing, the Applicant confirmed that he had nothing further to add.

10.Notwithstanding the Applicant’s failure to identify any effective ground of review, I have considered the Board’s Decision in detail. I do not find any error of law, procedural unfairness or irrationality. There is nothing to indicate that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters.

11.The Board’s Decision was comprehensive with adequate reasons provided. In particular, the Board was plainly correct in finding that there is no evidence of any real risk of serious harm, given that:-

(1)  The Applicant was unable to provide any detailed information as to the alleged capability and influence of the Adversary to persecute the Applicant (§§48-49, 76).

(2)  There was no evidence that the Adversary had any means to influence government authorities or the police to pursue the Applicant (§62).

(3)  The Adversary has never exerted any actual violence on the Applicant or his family members despite the making of verbal threats to his wife and parents (§§63-73).

12.The Applicant’s contention that he will not have protection in the Philippines or that he cannot relocate to other parts of the country is a bare assertion not supported by credible evidence:-

(1)  On state protection, having considered relevant COI, the Board was entitled to form the view that adequate state protection was available in the Philippines notwithstanding that the law enforcement authorities in the Philippines may not be totally effective and corruption free. Improvements and reforms were underway to enhance police effectiveness (§§42-45). The Applicant and his family never reported the matter to the police. There was no evidence that the police or any public official was unwilling to investigate the matter if reports were made by the Applicant or his family (§§77-78).

(2)  On the availability of internal relocation alternatives, it is clear that, the Applicant, as an able-bodied adult with reasonable business skills, should have no difficulty relocating to places such as Quezon city or Cebu. There is no evidence that the Adversary would be able to track down the Applicant after relocation (§§119-121).

13.In the circumstances, the Board’s Decision satisfies the enhanced Wednesbury test and cannot be said to be irrational.

14.In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, leave is refused.

Conclusion

15.In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 23^rd 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