Banta Rosemae Rodriguez v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1487/2023

[2026] HKCFI 4813

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1487 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 23 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 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 15 July 2026 (the “Hearing”) and the Applicant attended in person.

Background

4.The hyperlink to the Board’s Decision (which contains a summary of the relevant background and the Applicant’s evidence) is included below[1] for reference. In short, the Applicant claimed that, she would be subject to serious ill-treatment or harm by her husband (the “Husband”) if she were to return to the Philippines because the Husband found out that the Applicant had an affair in Hong Kong.

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 and need not be repeated at length. 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.Other than expressing her disagreement with the Board’s Decision, the Applicant failed to identify any ground of review in her Form 86 and affidavit in support. At the Hearing, the Applicant confirmed with me that she had nothing further to add to her application. On account of the Applicant’s failure to put forward effective grounds of review, leave should be refused.

9.For completeness, I have read the Board’s Decision, there is no error of law, procedural unfairness or irrationality which can give rise to a reasonably arguable case for judicial review.

10.I am satisfied that the Board has given adequate reasons for its decision and has conducted a meticulous analysis of all the material 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, as there was insufficient evidence to indicate that the Husband had any real intention to kill the Applicant (§43):-

(1)  Taken at its highest, the case was only a case of domestic violence. Despite the deterioration of relationship between the Applicant and the Husband since 2018, the Husband had never inflicted any serious harm on the Applicant. The Applicant’s injuries caused by the Husband were minor and she continued to live with the Husband. (§§26-29).

(2)  The Husband discovered the Applicant’s affair in 2020 but he only made verbal threats. The Applicant continued to talk to the Husband concerning the affairs of their children. Although the Applicant had complained that the Husband would sometimes hurt the children when he was high on drugs, there was nothing to indicate that those injuries were serious. The Applicant has remained in daily contact with her mother and her children until she was detained in Hong Kong (§§33‑40).

11.The Applicant’s bare assertion that she will not have protection in her home country or that she cannot relocate to other parts of the country is not substantiated:-

(1)  On state protection, having considered the pertinent COI, the Board was entitled to form the view that adequate state protection is available notwithstanding the existence of certain shortcomings and ineffectiveness in the legal system (§§45-47).

(2)  On the availability of internal relocation alternatives, it is clear that, the Applicant, as an able-bodied adult with reasonable education and skills, should have no difficulty relocating to places such as Zamboanga and Davao. The threat from the Husband is localised and limited. There is no evidence that she would face any harm after relocation  (§§48-49).

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 2^nd day of October 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