Belen Marilyn Flores v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1020/2023

[2026] HKCFI 4555

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1020 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 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 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 26 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 7 June 2023 (the “Board’s Decision”).

2.In the Form 86, the Applicant has named the Board and the Director of Immigration (the “Director”) as both the proposed respondents and the proposed interested parties. Given that the challenge is against the Board’s Decision, the Board should be the proposed respondent whereas the Director should be the proposed interested party, 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 22 July 2026 (the “Hearing”) and the Applicant attended in person.

Background

4.Relevant background to the non-refoulement claim and the arguments advanced before the Board 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 claims that she will be seriously harmed or killed by her former business partner (the “Adversary”) if she were to be 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 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 (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 §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 affirmation made in support of the Leave Application, the Applicant repeated her claim and set out the following proposed grounds of review:-

(1)  She complained about the lack of legal or language assistance (§§9-17, 23-24).

(2)  It is said that the Board did not consider COI relevant to her political affiliation and threats from the Maoists (§19).

(3)  The Board has failed to take into account that the Applicant was living in fear and trying to cut ties with the “outside world” and that she was vulnerable (§20).

(4)  The Board failed to give any explanation why the Board took the view that the Applicant would not be in danger if she were to return to the Philippines.

9.At the Hearing, the Applicant confirmed that she had nothing to add.

10.In my view, Ground (1) is without substance:-

(1)  It is trite that the high standards of fairness applicable does not require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom, see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17 and Re Lopchan Subash [2018] HKCA 37.

(2)  Contrary to her allegation that she did not understand English, I note that the Notice of Appeal to the Board, the Form 86 and the supporting affirmation were all written in English. In particular, the supporting affirmation was reasonably well-written with reference to various legal authorities. This shows that the Applicant is either reasonably fluent in English or is in a position to obtain assistance from someone who is reasonably fluent in English and familiar with non-refoulement claims if needed.

(3)  In any event, the Applicant’s complaint of lack of language assistance is simply false. As noted in the Board’s decision, she had the benefit of Tagalog interpretation at all material times. The Non-Refoulement Claim Form was completed with the assistance of a lawyer and interpreter. Interpretation was provided both at the screening interview with the Immigration Department and the hearing before the Board (§§29, 33-34). The Board also obtained translations of documents in Tagalog which were submitted by the Applicant (§41).

(4)  It is readily apparent from the Board’s Decision that the Applicant was able to answer questions from the Board during the hearing (e.g. §§43-45). There is no suggestion that the Board encountered any difficulty in understanding the Applicant’s answers or that the Applicant had any difficulty understanding the Board’s questions.

11.I also do not find Ground (2) to be meritorious:-

(1)  The reference to the Applicant’s political affiliation and “Maoist” is puzzling as there is no mention of such matters in the Board’s Decision. The Applicant’s case has always been that she was facing threats from the Adversary arising from a private dispute whether the Adversary had failed to make good his business bargain with the Applicant and she had confirmed the gist of her claim with me during the Hearing. There is no suggestion that politics played any part in the Applicant’s case.

(2)  In any event, the claim that the Board has disregarded COI in relation to the Applicant’s political affiliation is vague and unparticularised. There is no elaboration what the COI is about and how they affect the Applicant’s claim.

12.Ground (3) also vague and unparticularised. It is not suggested that the Applicant has been diagnosed with any physical or mental condition. The Board has already taken into account that in general, asylum seekers may face difficulties and that a high standard of fairness was required in the determination of the Applicant’s appeal and that the benefit of the doubt may have to be afforded (§31). The Board had also raised particular points of concern and inconsistencies in the Applicant’s evidence in the hearing and gave her the opportunity to provide explanations (§§34-53). I do not see how it can be said that the Applicant did not have a fair hearing before the Board.

13.Ground (4) is likewise devoid of merits. I am satisfied that the Board has given adequate reasons for its decision and has conducted a meticulous analysis of the evidence put before it. Amongst others, the Board was entitled to take the view that the Applicant did not face any real risk of serious harm as the Applicant’s evidence was incredible. The Applicant was unable to give a coherent account as to how she was threatened by the Adversary and whether she sought assistance from the police and why she discontinued her civil claim against the Adversary in the Philippines. She also gave inconsistent evidence as to why she decided to leave the Philippines to come to Hong Kong in about May 2018 (§§45-51).

14.The Applicant’s contention that she cannot relocate to other parts of the country only her bare assertion. The Applicant, as an able-bodied adult with reasonable working experience who had lived in a number of cities in the Philippines, should have no genuine difficulty relocating to places such as Manila. There is simply no evidence to support the Applicant’s claim that the Adversary would have the power and determination to pursue the Applicant throughout the Philippines (§§52-53).

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

16.In short, 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

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

Dated the 21^st 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