Batalla Mary Jean Lumanas v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL1610/2023

[2026] HKCFI 4732

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1610 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 the Applicant being absent 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 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 23 May 2023 (the “Board’s Decision”).

2.Only the Board’s Decision is under challenge in the Leave Application. Therefore, the Board should be made the proposed respondent and 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 was absent. Notwithstanding her absence, I shall proceed to determine the Leave Application on paper.

Background

4.The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. In short, the Applicant claimed that she will be killed by her former boyfriend and his family (the “Adversaries”) if she were to be returned to the Philippines because of a dispute over the guardianship of the son of the Applicant and the boyfriend. She also claimed that the boyfriend’s family is rich and powerful and the boyfriend’s brother was the vice mayor of Davao in 1993 and 1996.

The Leave Application is out of time

5.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. However, the Form 86 was filed late for about 3 weeks.

6.In AW v Director of Immigration and William Lam CACV 63/2015 (unreported, 3 November 2015), the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors is in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.

7.In the present case, the delay of about 3 weeks is not insignificant. No explanation for the delay has been provided by the Applicant in her application documents despite the express requirement on the Form 86 to do so. The Applicant also failed to attend the Hearing which indicates a want of prosecution. On account of these matters, no time extension should be granted on the court’s own motion.

8.In any event, I will consider the merits of the Leave Application below for completeness.

Merits

9.It is trite law that:-

(1)  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 a court in a judicial review 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.

(2)  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, 22 December 2016) per Chow J. (as he was then) at [142].

10.In the Form 86 and the accompanying supporting affidavit, the Applicant did not advance any grounds in support of the Leave Application.

11.Having examined the Board’s Decision, the papers and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to all applicable grounds; the burden of proof and standard of proof; correctly identified the issues and observed the requisite high standard of fairness and considered all relevant factors. The Board’s rejection of the Applicant’s claim is plainly correct:-

(1)  I do not see any basis to interfere with the Board’s finding that there was no risk of threat:-

(a)  As analysed by the Board (at [37]-[38], [42]), the Applicant’s relationship with her former boyfriend was short-lived and she became pregnant in 1993. Any dispute over the guardianship of their son took place a long time ago. The Applicant also returned to her home in the Philippines a number of times between 2000 and 2008. The Adversaries have not located the Applicant or the son for decades. If the Adversaries were in fact as influential or powerful as alleged, they would have found the Applicant and her son a long time ago.

(b)  The Applicant’s claim that the boyfriend’s brother was the vice mayor of Davao in 1993 and 1996 is shown to be false by official documents ([38iv]).

(c)  In any event, reasonable relocation alternatives were available to the Applicant. As pointed out by the Board after considering the relevant Country of Origin information ([52]-[53]), the Philippines is a large and populous country, the Applicant should have no significant difficulty moving to a big city such as Manila or Cebu. There was no evidence that the Adversaries would have the means and determination to pursue the Applicant there.

12.Hence, I am not satisfied that the Board has erred in the enhanced Wednesbury sense. The Applicant’s intended challenge of the Board’s Decision is not reasonably arguable and will fail in any event if a time extension is granted.

Conclusion

13.In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed as it was made out of time.

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