Nasayao Virginia Moratalla v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 657/2022

[2026] HKCFI 5024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 657 of 2022

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 the documents and the Applicant absent in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Bonnie Cheng:    

1.  Form 86 be amended, naming the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office as putative respondent and the Director of Immigration as putative interested party.

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

Observations for the Applicant:

Introduction

1.By Form 86 dated 25 July 2022 (“Form 86”), the Applicant seeks leave to apply for judicial review (“Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“Board”) dated 31 December 2021 (“Board’s Decision”), which affirmed the Decision of the Director of Immigration (“Director”) dated 29 July 2021.

2.The Form 86 incorrectly named the putative respondent and putative interested party. I therefore amend the Form 86 on my own motion to name the Board as putative respondent and the Director as putative interested party.

3.An oral hearing, which was requested by the Applicant, took place before me on 4 March 2026. The Applicant was however absent from the hearing.

Leave Application Out of Time

4.Pursuant to O 53, r 4(1) of the RHC, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

5.Here, the Applicant should have made the Leave Application by 31 March 2022, i.e. within three months from the date when the Board’s Decision was made. However, the Leave Application was only made on 25 July 2022 and hence out of time for about 4 months.

6.S 21K(6) of the High Court Ordinance (Cap 4) provides that:

“Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the Court may refuse to grant –

(a) leave for the making of the application; or

(b) any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

7.As the Court of Appeal explained in AW v Director of Immigration & Anor [2016] 2 HKC 393 at §§23-36, the following (non-exhaustive) factors are relevant to whether an applicant has a good reason to extend time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant (if time is not extended) and to the respondent and public administration (if a challenge is allowed to proceed out of time); and (5) questions of general public importance. The court is to consider the matter flexibly, always with regard to the particular circumstances of each case.

8.A delay of about 4 months is not short. The Applicant’s explanation in her Form 86 is that she was scared of going out at the time due to Covid-19 and given that she did not have vaccination then.

9.In any case, I shall proceed to review the substantive merits of the Leave Application, being another relevant factor for consideration.

Background

10.The Applicant is from the Philippines. Her background and the basis of her application for non-refoulement were set out in detail in the Board’s Decision at this hyperlink.[1] I will not repeat them here. Unless otherwise specified, I adopt the abbreviations in the Board’s Decision.

11.In short, the Applicant claimed to be in fear of being harmed by her brother, who was a gangster, drug addict and drug trafficker.

Discussion

12.Leave application is meant to be a filtering process and the court is not expected to give elaborate reasons for its decision: Re Zunariyah [2018] HKCA 14 at §23. I therefore set out below brief reasons for my decision, which I have reached upon considering all the materials before me.

13.The court’s role in judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court adopts in non-refoulement cases an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, 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 or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1). There must be a reasonably arguable case, namely one which enjoys a realistic prospect of success, before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §§14-17.

14.In a proper Form 86, an applicant is required to state the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) at §142. He or she is also under a duty to make full and frank disclosure of material facts: Kan Hung Cheung v The Director of Immigration [2008] HKC 323 at §§14-17.

15.In the Leave Application, the Applicant has not stated any ground of judicial review. She has not identified any error of law or procedural unfairness or irrationality in the Board’s Decision to demonstrate a reasonably arguable case.

16.In any event, I have reviewed the Board’s Decision and I do not detect any error of law, procedural unfairness or irrationality. In particular:

(1)  The Board observed that the only one threat said to be made by the brother to the Applicant’s mother in around October 2012 was that if their mother did not give him PHP500,000 within 3 days, he would kill their mother and the Applicant: §§11(f), 42.

(2)  The Board noted that there was no evidence of the brother having threatened or harmed any other member of the Applicant’s family: §§39, 41.

(3)  Based on the available evidence, the Board did not consider the Applicant faced a real risk of harm from her brother if she were to be refouled to her country: §43.

17.In the premises, I conclude that the Applicant’s intended challenge against the Board’s Decision is not reasonably arguable.

Conclusion

18.I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 7^th day of September 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