Mata Olivia G v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 447/2023

[2026] HKCFI 4185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 447 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 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 22 March 2026 (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 16 March 2023 (the “Board”, the “Board’s Decision”). In the Board’s Decision, the Board rejected the Applicant’s appeal against the Decision of the Director of Immigration (the “Director”) dated 14 January 2022.

2.In the Form, the Applicant did not identify any ground in support of the Application. In the Affidavit in support of the Leave Application (the “Affidavit”), the Applicant only exhibited a copy of the Board’s Decision but did not put forward any ground in support of the Application either.

3.In the Form, the Applicant named the Board as the interested party. I will amend the Form on my own motion to name the Director as the interested party instead.

4.By a letter dated 21 May 2026, the Applicant wrote to the Court seeking to add grounds and documents in support of the Leave Application (the “Letter”). An article titled “Philippines – Sweeping Violence under the Carpet” (the “Article”) is enclosed with the Letter. While these materials were put forward at a late stage, for fairness’ sake, I will take them into consideration in determining this Application.

5.The Applicant requested for an oral hearing which was held on 15 June 2026 (the “Hearing”).

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.In the Letter, the Applicant raised various grounds in support of the Leave Application, some concern the Director in reaching the Imm Decision while the others concern the Board in reaching the Board’s Decision. I will summarise those relating to the Board’s Decision below, as they are the grounds relevant to the Leave Application:

a.  Procedural impropriety – The TCAB failed to properly apply paragraph 2 of the UN Committee against Torture General Comment No. 2 whereby satisfaction of a national state’s obligations to conduct sufficient due diligence requires that reforms and means of relief introduced by the state must be effective, as opposed to merely showing signs of positive improvement, citing Re: JKF CACV 103/2014 (unrep., 25/11/2014);

b.  Procedural impropriety – the Board failed to conduct sufficient inquiry into the relevant country of origin conditions;

c.  Procedural impropriety/irrationality – the Board failed to give reasons for the assessment of risk under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance or to give sufficient basis to support its conclusion on the above risk;

d.  Error/misdirection in the law – the Board failed to take into account the consideration of psychological strain and threats to the Applicant;

e.  Procedural impropriety – the Board failed to consider the Applicant’s fear that her enemies are still waiting for her if she returns to Philippines, and that the Applicant cannot relocate to other places in Philippines as the enemies could easily trace her;

f.  Misdirection in the law – the Board failed to assess the Applicant’s fear and her country-of-origin conditions. If the Applicant returns to the Philippines, she would face a terrible risk and her life is under risk from her enemies;

g.  No sufficient basis to conclude that the Applicant and her family members would not be at risk of being subjected to torture and/or cruel, inhuman or degrading treatment or punishment upon refoulement;

h.  Error/misdirection in the law – the Board failed to assess the threshold and threats from her enemies are real even though many years have passed;

i.  The Board cherry picked the country-of-origin information report.

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 situation, including her evidence and her grounds for challenging the Director’s decision in refusing her claim for non-refoulement protection. The Applicant’s assertions centre around alleged violence and threats committed by her husband on four occasions (the “Husband”). The Applicant claims that the Husband is still looking for her and would be able to locate her if she returns to the Philippines. Having carefully considered all the evidence of the Applicant, the Board rejected the Applicant’s case about the violence by the Husband and her alleged fear as being incredible: see the Board’s Decision paras. 45-55. The Board went on to find that even assuming the Applicant were assaulted and threatened as alleged on the four occasions, she still cannot establish that there is a real chance that she would be subject to any of the requisite risks: see the Board’s Decision paras. 56-60. In addition, the Board considered that there were internal relocation options available to the Applicant if the issue of relocation arises: see the Board’s Decision paras. 61-62. 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 the Philippines and rejected her appeal: see the Board’s Decision para. 63. I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

11.As to the grounds raised in the Letter:

a.  With respect to paragraphs 7 (a), (b), (f) and (i) above, as the Board has rejected the Applicant’s assertions of harm and fear on the facts, the Board is not required to comment on the country-of-origin information in detail: see the Board’s Decision para. 44;

b.  With respect to Paragraphs 7 (c) above, as I have explained in paragraph 10, the Board has thoroughly analysed the evidence before concluding the Applicant would not face any BOR 2 Risk (as well as other alleged risks);

c.  With respect to Paragraphs 7 (d), (e), (g), (h) above, the complaints therein are invalid as the Board has considered the Applicant’s case in detail, see paragraph 10 above.

12.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

13.For the reasons stated above, I will dismiss the Leave Application.

Dated the 31^st 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