Gazmin Jean Cabilao v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 798/2023

[2026] HKCFI 4085

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 798 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 that the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office be named as the Putative Respondent.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 23 May 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 18 May 2023 (the “Board’s Decision”).

2.To ensure that the Board is properly named, 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 her claim and the arguments she 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 gist of the Applicant’s claim is that she fears that she will be harmed by her stepfather and stepbrothers (the “Adversaries”) because she refused to be involved in their business of selling illegal drugs. The Adversaries are alleged to be associated with criminal gangs.

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. 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.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: Re Haider Khalil [2021] HKCA 223 at §16.

8.In her affidavit in support of the Leave Application, the Applicant set out the following grounds of appeal:-

(1)  The Board did not take time or did not think about the danger to her life.

(2)  The Board did not review and did not understand the documents in Tagalog submitted by the Applicant (the “Documents”). No time was given to the Applicant to arrange for the translation of the Documents.

(3)  The interpreter became impatient and angry with the Applicant during the hearing.

9.It appears that the above grounds were based on a generic template. They are wholly unparticularized and devoid of any elaboration. For example, there is no attempt to identify what these documents were and how the fairness of the proceedings was affected by reason of the alleged impatience of the interpreter.

10.At the Hearing, the Applicant did not add anything of substance. She only asked me to consider to allow her to stay in Hong Kong.

11.I have considered the Board’s Decision in detail. I do not find any error of law, procedural unfairness or irrationality (in the enhanced Wednesbury sense). 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.

12.It is also expressly noted in the Board’s Decision (at §6) that the Applicant and the interpreter had both confirmed that they had no difficulty in understanding each other and that the Applicant was content to adopt the documents in the hearing bundle as evidence in support of her case. There is no suggestion of any real difficulty in interpretation which arise in the course of the hearing or that the Applicant had raised the issue on translation of documents.

13.Contrary to the Applicant’s allegation that the Board did not consider her claim properly, the Board’s Decision was in fact comprehensive and adequate reasons were provided for its decision to reject the Applicant’s claim. In particular, the Board was plainly correct in finding that there was no evidence of any real risk of serious harm, given that:-

(1)  The Applicant’s assertion that the Adversaries intended to kill her was based on double hearsay (§§44, 55). I note that in any event, the relevant threats were alleged to be made in 1996, which was over 30 years ago.

(2)  The Board rightly concluded that there was no intention on the part of the Adversaries to kill or seriously harm the Applicant. This is supported by the fact that nothing eventful had happened in the 30 years since the threat was last made. The Applicant was in the Philippines for about 9 years without encountering any danger from the Adversaries before she travelled to Hong Kong to work as a domestic helper (§§44-55).

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

(1)  On state protection, having considered the relevant COI, it was open to the Board to form the view that adequate state protection was available notwithstanding the existence of certain shortcomings in the effectiveness of the law enforcement authorities (§§57-59). Even on the Applicant’s case, the Adversaries were subject to arrests by police in the past (§§31, 44). This suggests that the Adversaries were not able to act with impunity.

(2)  On the availability of internal relocation alternatives, it is clear that, the Applicant, as an able-bodied adult with reasonable working experience, should have no difficulty relocating to places such as Cebu or Davao City. There is no evidence that she would face any persecution or harm after relocation as in any event, there is no evidence that the Adversaries would have the means and the intention to track down the Applicant throughout the country.

15.In such circumstances, 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, I refuse to grant leave for judicial review.

Conclusion

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

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