Salazar Jenica Orteza v Torture Claims Appeal Board/

HCAL 895/2022

[2026] HKCFI 4153

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 895 of 2022

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 the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Bonnie Cheng:

1.  Form 86 be amended, naming only 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 Form 86 dated 8 September 2022 (“Form 86”), the Applicant seeks leave to apply for judicial review (“Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“Board”) dated 31 August 2022 (“Board’s Decision”), which affirmed the Decision of the Director of Immigration (“Director”) dated 14 July 2021.

2.The Applicant did not request an oral hearing. I determined her Leave Application on the papers accordingly: O.53, r.5(3) of the Rules of the High Court (Cap 4A).

3.The Form 86 incorrectly named both the Director and the Board as putative interested parties. I therefore amend the Form 86 on my own motion to name only the Director as the putative interested party.

Background

4.The Applicant from the Philippines. Her background and the basis of her application for non-refoulement were set out in detail in the Board’s Decision at this hyperlink.[1]  I will not repeat them here. Unless otherwise specified, I adopt the abbreviations in the Board’s Decision.

5.In short, the Applicant claimed to be in fear of being harmed by her partner, whom she met in 2008 and have had two children with. She referred to an incident of abuse (in which her leg was burnt and left with a scar) and attempted rape by her partner in early 2020, and a video call in May 2021 in which her partner threatened to kill her if she insisted on breaking up with him.

Discussion

6.Leave application is meant to be a filtering process and the court is not expected to give elaborate reasons for its decision: Re Zunariyah [2018] HKCA 14 at §23. I therefore set out below brief reasons for my decision, which I have reached upon considering all the materials before me.

7.The court’s role in judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court adopts in non-refoulement cases an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1). There must be a reasonably arguable case, namely one which enjoys a realistic prospect of success, before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §§14-17.

8.In a proper Form 86, an applicant is required to state the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) at §142. He or she is also under a duty to make full and frank disclosure of material facts: Kan Hung Cheung v The Director of Immigration [2008] HKC 323 at §§14-17.

9.In this Leave Application, the Applicant has not stated any ground of judicial review. She has not identified any error of law or procedural unfairness or irrationality in the Board’s Decision to demonstrate a reasonably arguable case.

10.In any event, I have reviewed the Board’s Decision and I do not detect any error of law, procedural unfairness or irrationality. In particular:

(1)  The Board observed that the partner’s threat to kill the Applicant was a single utterance: §67.

(2)  The Board further noted that the Applicant only reported the attempted rape to the barangay authorities (being the lowest level of government) but did not complain to the police. The Board referred to the Applicant’s indication at the hearing that the barangay officials would try to mediate with both parties to reach an amicable solution and, should that fail, the Applicant could seek to have the barangay office endorse her concerns to the police: §§59-64, 68.

(3)  More importantly, the Board considered that if the situation with her partner deteriorated to a state where she feared for her safety, the Applicant could relocate safely within the country. The Board did not accept that her partner would have the means or skills to engage in any meaningful search for her. The Board further took the view that the Applicant could relocate to various cities, having regard to her personal background and work experience: §§69-74.

11.In the premises, I conclude that the Applicant’s intended challenge against the Board’s Decision is not reasonably arguable.

Conclusion

12.I make an order that the Form 86 be amended in the manner set out above and that 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