Siva Ma Luna Mantiles v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1083/2023

[2026] HKCFI 4557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1083 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 4 July 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 8 December 2022 (the “Board’s Decision”).

2.In the Form 86, the Applicant has named the Board as the proposed respondent and also the proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (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 was absent. In the circumstances, I have proceeded to consider the application on paper.

Background

4.The salient details of the Applicant’s non-refoulement claim and the arguments she advanced can be found in the Board’s Decision. The hyperlink to the Board’s Decision is included below[1] for reference. In essence, the Applicant came from the Philippines to Hong Kong as a domestic helper but she remained here notwithstanding the termination of her employment. She claimed that she is in fear of being killed by her former boyfriend (the “Boyfriend”) if she were to return to her home country because she refused to marry the Boyfriend.

The Leave Application is out of time

5.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the Applicant has 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. However, the Form 86 was filed late for close to 4 months.

6.In AW v Director of Immigration and William Lam CACV 63/2015 (unreported, 3 November 2015), the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors is in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.

7.The delay of about 4 months in the present case is serious. No request has been made for leave to file the Leave Application out of time in the application papers. The Applicant also failed to appear at the Hearing. On account of the absence of request for time extension, the Leave Application should be dismissed.

8.For completeness, I have also considered the merits of the Leave Application below.

Merits

9.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.

10.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.

11.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.

12.In the Form 86 and her affidavit in support, the Applicant did not provide any grounds in support of the Leave Application. In any event, 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.

13.Adequate reasons have been given by the Board for its decision. Amongst others, the Board was plainly correct in finding that there is no evidence of any real risk of serious harm, given that her account was incredible:-

(1)  The alleged failure to marry the Boyfriend took place in 2008, i.e. about 16 years ago (§22, 23.9). Remarkably, she did not make any claim for non-refoulement until 2021 which was 13 years after the dispute with the Boyfriend arose and she was in Hong Kong during this period and she was unable to provide any convincing explanation (§§25-26).

(2)  The Applicant was evasive and her evidence was vague and lacking in detail, despite having been given the opportunities to provide an explanation to the Board. The alleged threat from the Boyfriend was only based on the Applicant’s bare assertion and was at best hearsay (§§23.9, 31(d)-(f), 35). There is also no evidence that any of the Applicant’s family members in the Philippines were harmed by the Boyfriend.

(3)  There is also no evidence to suggest that the Boyfriend and his family were powerful as claimed by the Applicant. Taken at its highest, the case was only a localised private dispute (§§38, 43).

14.Hence, the Applicant’s intended challenge of the Board’s Decision is bound to fail even if a time extension is granted.

Conclusion

15.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