Rillera Estrella Abenes v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1530/2023

[2026] HKCFI 4727

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1530 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 30 August 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 25 August 2023 (the “Board’s Decision”).

2.In the Form 86, the Applicant has named both the Board and the Director of Immigration (the “Director”) as the proposed respondents while the Board was named the proposed interested party. As the challenge is against the Board’s Decision, the Board should be the proposed respondent whereas the Director should be the proposed interested party. Hence, I make an order to amend the Form 86 accordingly on my own motion.

3.An oral hearing was requested by the Applicant. It took place before me on 27 July 2026 (the “Hearing”) and the Applicant attended in person.

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 gist, the Applicant came to Hong Kong as a domestic helper but remained here after the termination of her employment contract. She fears that she will be harmed by her estranged husband (“Husband”) if she returns to her home country.

Discussion

5.The brief reasons for my decision is set out below since the leave application is intended to be a filtering process and elaborate reasons are not necessary, see: Re Zunariyah [2018] HKCA 14 at §23.

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.The Applicant failed to provide any grounds in support of the Leave Application in her Form 86 or her affidavit in support. At the Hearing, the Applicant said there was nothing else she would like to add to her application. Such failure to advance effective grounds of review warrants the dismissal of the Leave Application.

9.For completeness, I have 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.

10.It is plain to me that the Board has given adequate reasons for its decision. Amongst others, the Board was plainly correct in finding that there was no real risk of serious harm, given that (as admitted by the Applicant during the hearing before the Board and corroborated by information from social media) the Husband was in fact living in Hong Kong with his current partner but not the Philippines (§§56-59).

11.In any event, taken at its highest, the present case is one of domestic violence (§67). The alleged ill-treatment from the Husband (which consisted of beatings and verbal abuse) cannot be said to be serious or life-threatening (§§27, 29(iii)-(iv)). The Applicant also repeatedly returned to the Philippines despite the alleged threat (§68). In any event, the Applicant had no contact with the Husband since 2005 (§46).

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

13.The Applicant’s intended challenge of the Board’s Decision is hopeless and completely devoid of merits. Accordingly, leave is refused.

Conclusion

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

Dated the 24^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