Amene Mary Joy Marcial v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1562/2023

[2026] HKCFI 4730

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1562 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 4 September 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 the Board as both the proposed respondent and 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 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 short, the Applicant came to Hong Kong to work as a domestic helper. She claimed that she will be killed by her former romantic partner (the “Adversary”) if she returns to the Philippines.

Discussion

5.This type of 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.It is well established that the determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which this court will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

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 affidavit in support of the Leave Application, the Applicant only made blanket assertions that (i) the Board has failed to consider her claim that she faces a real risk of harm if she returns to the Philippines; and (ii) the Board has failed to consider the relevant Country of Origin Information (“COI”). There has been no attempt to condescend to particulars of the relevant circumstances to elaborate how the Board has so erred. At the Hearing, the Applicant only confirmed that there was nothing else she would like to add. On this basis, the Leave Application should be dismissed.

9.Notwithstanding the Applicant’s failure to identify any effective grounds of review, I have in any event considered 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. 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.

10.Contrary to the Applicant’s allegations, 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 plainly correct in finding that there is no evidence of any real risk of serious harm:-

(1)  The Board has rightly concluded that the Applicant is not credible, given the serious inconsistencies in material aspects of her evidence, including the timing of significant events such as when she made complaints to the police and whether the Adversary had attempted to contact the Applicant’s mother after 2019 (§§57-58). She also raised spontaneous claims during the hearing before the Board claiming that she would be burned alive if she returns to the Philippines without any proper basis (§60).

(2)  The Applicant’s case is one of domestic violence. The Board has given careful consideration to the available COI to arrive at its conclusion that reasonable state protection was available (§§52-54). I see no basis to disturb that finding. In the present case, it was admitted by the Applicant at one time that the police had in fact stopped the Adversary from assaulting the Applicant on at least one occasion (§44).

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

12.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

13.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