Simen Maryett Tacio v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1596/2023

[2026] HKCFI 4731

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1596 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 that the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office be named as the Putative Respondent.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 11 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 17 August 2023 (the “Board’s Decision”).

2.To ensure that the Board is properly named, 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 necessary details of the Applicant’s claim can be found in the Board’s Decision. The hyperlink to the Board’s Decision is included below[1] for reference. To put the matter shortly, the Applicant claims that, if she were to be returned to the Philippines, she would be tortured or killed by certain loan sharks (the “Adversaries”) because she owed them money.

Discussion

5.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.

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. 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’s grounds of review were set out in her affidavit in support of the Leave Application. Apart from repeating her claim about the danger she faces in her home country, the Applicant also alleged that she encountered language difficulties which prejudiced her right to a fair hearing:-

(1)  It is alleged that the documents submitted by the Applicant (the “Alleged Documents”) were rejected by the Board because they were in the Applicant’s native language and the Board did not give the Applicant time to arrange for translation.

(2)  She also complained that the interpreter provided at the hearing before the Board was impatient with the Applicant and did not offer any assistance.

9.I am not satisfied that the Applicant’s complaint about alleged language difficulties has any merit:-

(1)  These complaints are unparticularised blanket allegations without reference to the specific facts in question, for example, there is no attempt to identify what the Alleged Documents are and how they would assist the Applicant’s claim. There is also no elaboration as to how the interpretation at the relevant hearing is said to be unsatisfactory or how it prejudiced the Applicant’s presentation of her case.

(2)  It is noted that the Applicant’s Notice of Appeal to the Board is written in English, she also admitted to the Board that she was able to prepare a statement in English which was described by the Board as having demonstrated a “very high” standard of English (§68).

(3)  To date, the Applicant has failed to produce copies of the Alleged Documents or their English translation.

(4)  It is not apparent from the Board’s Decision that the Applicant had any difficulty presenting her case or understanding the various questions asked by the Board during the hearing (see e.g. §§50-64) or that there was any attempt by the Applicant to submit the Alleged Documents (§73).

10.At the Hearing, the Applicant confirmed that she had nothing else to add to her application.

11.In any event, having reviewed 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. 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 from the Adversaries. Plainly, at no time had the Applicant or her family members suffered any actual serious harm from the Adversaries even though the Adversaries had ample opportunities to inflict such harm (§83).

12.Despite reports of corruption and inefficiency in local police, the COI has shown that, as a whole, the police authorities were willing and able to provide law enforcement protection to persons in need. The Applicant’s failure to seek police protection indicates her lack of fear of imminent serious or fatal harm from the Adversaries (§84). As she was able to leave the Philippines through the official channels, this suggests that she was not a person of adverse interest to the government authorities (§84(9)).

13.In any event, it was open to the Applicant, as an able-bodied adult with some working experience and good English skills to relocate to other parts of the country such as Manila or Quezon City without undue harshness. There is no evidence to suggest that she will face any threat after relocation (§§68, 88).

14.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

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 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