Dioso Ivy Malacao v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 958/2023

[2026] HKCFI 4439

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 958 of 2023

BETWEEN

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 the Applicant being absent 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 16 June 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 1 June 2023 (the “Board’s Decision”).

2.In the present case, as only the Board’s Decision is challenged, the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party.

3.An oral hearing was requested by the Applicant. It took place before me on 22 July 2026 (the “Hearing”) and the Applicant was absent. Hence, I shall determine the Leave Application on paper.

Background

4.The Applicant’s background, the basis and history of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and it is unnecessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. In short, the Applicant came to Hong Kong as a domestic helper but she remained here notwithstanding the termination of her employment. She claimed that, if she returns to the Philippines, she will be harmed or killed by a creditor (the “Creditor”) because the Applicant failed to repay certain loans (the “Loans”) to the Creditor. The Creditor was also a domestic helper working in Hong Kong but has since returned to the Philippines.

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 my brief reasons below.

6.The determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. Determination of factual matters is exclusively within the realm of the Board, which this court will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

7.An applicant, even if self-represented, 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 of the underlying facts or matters in respect of 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 the Form 86 and her affidavit in support, the Applicant did not provide any grounds in support of the Leave Application. On account of such failure, leave should be refused.

9.In any event, having examined the Board’s Decision, I do not find any error of law, procedural unfairness or irrationality which can give rise to a reasonably arguable case for review. 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.

10.The Board has given adequate reasons for its decision and has conducted a meticulous analysis of the available evidence. Amongst others, the Board was plainly correct in finding that there is no evidence of any real risk of serious harm:-

(1)  The Applicant was unable to give a coherent and credible account on material aspects of her case such as the Creditor’s background, how she obtained the Loan from the Creditor, how the Loan funds were spent and how repayments were made. Her claim about the Loans was also not supported by any documentary evidence (§19-25, 28-38, 39-41, 52-53).

(2)  Similarly, the Applicant’s evidence concerning the alleged threats made by the Creditor is vague, illogical and inconsistent. She was unable to provide any reasonable explanation for the inconsistencies (§§43-50). Given the serious deficiencies in her evidence, the Board was fully entitled to reject her evidence even after taking into account the possibility that her evidence may be affected by extraneous factors such as stress, anxiety and passage of time (§52).

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

12.Therefore, I conclude that the Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success.

Conclusion

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

Dated the 14^th day of August 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