Case Document

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HCAL 1749/2023

[2026] HKCFI 4575

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1749 OF 2023

BETWEEN

	Actub Doris Canamo	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the applicant or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

2.  The applicant’s application for extension of time to file the application for leave to apply for judicial review be refused.

3.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated 28 September 2023 and filed on 29 September 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 8 June 2023. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001749_2023_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director dated 26 November 2021, which rejected the applicant’s non-refoulement claim.

Amendment

3.In Form 86, the applicant named “the torture claims appeal bord non Refoulment Claims Retition Office” as the putative respondent, when only the Board should be so named.

4.The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

5.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.

Late application

6.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

7.However, the applicant filed Form 86 on 29 September 2023, which was 3 months and 21 days after the Board’s Decision (made on 8 June 2023). The applicant was hence late for 21 days in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

8.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

9.In the applicant’s Form 86, the applicant made an application for extension of time to file the Leave Application. However, no explanation was given regarding the reason for the delay, but she stated in Form 86 that she was always sick.

10.Although a delay of 21 days is not substantial, there is simply no reason for this court to grant an extension of time for her to file the Leave Application out of time when no proper explanation was given. She did not explain how her sickness had prevented her from issuing the Leave Application. More importantly, the Leave Application has no merit at all as discussed below.

11.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application. The applicant’s application for extension of time to file the Leave Application is refused. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

12.However, for the sake of completeness, this court will still deal with the merits of the Leave Application as discussed below.

The applicant’s case

13.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

14.In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, she would be harmed or even killed by her creditor named Roger due to her inability to repay the money she borrowed from him.

Disposal on paper

15.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

16.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

17.The applicant did not identify any ground for the intended judicial review in Form 86.

18.In her supporting affidavit dated 28 September 2023, the applicant only mentioned that the man who wanted to kill her was still looking for her, he was also hunting her family, and they really wanted her to pay the money that she borrowed.

Discussion

19.First of all, the applicant’s danger from her creditor in her home country had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

20.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

21.Thus, the applicant cannot ask this court to re-assess her non-refoulement claim. Nevertheless, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

22.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 10 October 2022 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.

23.As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection.

24.The Board had laid out its assessment of the applicant’s claims in paragraphs 52 to 61 of the Board’s Decision, and it is not necessary to repeat the same here.

25.In gist, the Board was not satisfied that the applicant was a witness of truth. On the applicant’s own evidence, Roger never even contacted the applicant since the applicant came to Hong Kong. The applicant’s evidence about her alleged risk was that she received a call from her son in around March 2001 (which was some 21 years before the Board’s hearing) telling her that her husband was killed, and that she believed that Roger might have been responsible because she owed him money which had not been repaid.

26.The Board also found some aspects of the applicant’s claims inconsistent and some fanciful. The Board concluded with confidence that there was no substance in the applicant’s claims whatsoever, and that they had been invented solely for prolonging her stay in Hong Kong. The Board rejected the applicant’s account in its entirety.

27.In particular, the Board did not accept that there was any debt to Roger, or any related threat to the applicant or her family. The Board doubted that the applicant’s husband was killed, but even assuming for the sake of argument that he was in fact killed, the Board did not accept that that was for the reasons or in the circumstances claimed.

28.Thus, the Board was not satisfied that the applicant faced any risk of serious or significant harm for the reasons claimed if she returned to the Philippines.

29.The Board did not consider availability of state protection and viability of internal relocation. However, as the Board found that the applicant did not face a real risk of torture, ill-treatment, arbitrary deprivation of life or persecution at all, it is not necessary for the Board to consider the availability of state protection.

30.As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

31.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm whatsoever, it is not necessary for the Board to further consider internal relocation.

32.The finding of facts, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

33.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

34.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

35.For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

Dated the 12^th day of August 2026

(Gladys LEE)
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 12/08/2026 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 12/08/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 19421 Director of Immigration Putative interested party’s ref. no.: ImmD/CR T/C 1956/21 (formerly RBCZ 10838/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)