Case Document

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HCAL 425/2023

[2026] HKCFI 5314

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 425 of 2023

BETWEEN

	Benawe Oscar Santos	Applicant
	and
	Torture Claims Appeal Board /	Putative
	Non-Refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Andrew Li:

1.  Extension of time to file the Form 86 be refused;

2.  The Applicant’s Form 86 be amended to name the Director as the putative interested party; and

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

Observations for the Applicant:

INTRODUCTION

1.By a Form 86 filed on 20 March 2023 (“the Form 86”), the applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (“the Board”) dated 30 November 2022 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 20 September 2021 in refusing the applicant’s non-refoulement protection claim. He named the Board as both the proposed respondent and interested party.

2.I amended the Form 86 on my own motion to name the Director as the putative interested party.

3.The applicant requested for a hearing and he attended the same.

4.In addition, I noticed that the Board’s Decision was dated 30 November 2022 while the Form 86 was filed almost 4 months later on 20 March 2023 only. Under Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A), an application for leave to apply for judicial review should be made promptly and in any event within three months from the date when grounds for the application first arose. There was no explanation for the delay in filing the application nor was there any application to ask for an extension of time. In the circumstances, the court would refuse any extension of time to file the leave application.

BACKGROUND

5.The applicant is a national of the Philippines. He seeks non-refoulement protection on the basis that if he is refouled, he would be harmed or even killed by the boyfriend of his wife. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the Board’s Decision, which can be accessed through a hyperlink[1]. I shall not repeat the same here.

DISCUSSION

6.In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the Board is required given the seriousness of the issue at hand, this court should not usurp the role of the Board, which together with the Director are the primary decision-makers. This 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, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

7.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 216) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.In both of the Form 86 and his affirmation filed in support of the application, the applicant did not identify any grounds on which the relief is sought. In particular, he did not point to any errors of law, procedural unfairness or irrationality of the Board’s Decision. He only stated that he applied for judicial review against the Board’s Decision in rejecting his claim. At the hearing, he did not provide any further reason or ground for his application. He said he did not know any.

9.Looking at the Board’s Decision, the Board bore in mind the correct legal principles in relation to the assessment of evidence in such cases and in respect of each of all the applicable grounds under the USM.

10.It took into consideration the applicant’s case and evidence, including the option of internal relocation.

11.After thoroughly analysing and assessing the above, the Board came to the findings and conclusions that none of the grounds was made out.

12.Despite rigorous examination and anxious scrutiny, I could not find any errors of law, procedural unfairness or irrationality in the Board’s Decision. In my view, the applicant’s intended challenge to the Board’s Decision by way of judicial review is not reasonably arguable and has no realistic prospect of success.

CONCLUSION

13.For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

Dated the 22^nd day of September 2026

(Cheung Ho Yat, Annson)
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 the Applicant’s 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 to the Applicant on 22/9/2026 Benawe Oscar Santos Applicant’s ref. no.: Nil.		Sent 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 22/9/2026 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 18849 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1376/21 (formerly RBCZ 11311/21) (T3I26) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)