Manalo Mercedes Salvador v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1651/2023

[2026] HKCFI 4815

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1651 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 18 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 31 August 2023 (the “Board’s Decision”).

2.As a preliminary matter, I make an order to amend the Form 86 on the court’s own motion to correctly name the Board as the proposed respondent.

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.Relevant background, the basis and history of the Applicant’s non-refoulement claim and the arguments she advanced can be found 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 from the Philippines to Hong Kong to work as a domestic helper but she remained here notwithstanding the termination of her employment contract. She claims that she will be harmed or killed by her former romantic partner (the “Partner”) if she were to return to her country of origin because she broke up with the Partner. At the Hearing, the Applicant confirmed that she had nothing else to add to her application.

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.It is trite that 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.The Applicant’s proposed 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)  The Applicant also complained that the interpreter provided at the hearing before the Board was impatient with the Applicant and did not properly assist the Applicant.

9.The Applicant’s complaint about alleged language difficulties has no 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.

(2)  It is noted that the Applicant’s Notice of Appeal to the Board is written in English. This demonstrates that either the Applicant is reasonably fluent in English or that she was able to obtain the English language assistance.

(3)  As noted in the Board’s Decision (§§25-28), the Applicant in fact failed to attend the hearing before the Board. Therefore, the complaint of lack of proper interpretation is false.

10.In any event, having read 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.

11.I am satisfied that 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 a lack of evidence of any real risk of serious harm, given that: -

(1)  At the highest the case was one of domestic violence. The violence ceased by 2015. There is no reason to believe that the Partner would carry out his verbal threats.(§§31-33).

(2)  The Board was entitled to conclude that reasonable police protection was available in the Philippines and the police have in fact intervened in the past to stop the Partner from harming the Applicant (§§15, 23, 34).

(3)  The fact that the Applicant continued to maintain telephone contact with the Partner for at least 2 years is indicative of a lack of genuine fear of harm from the Partner (§35).

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

13.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

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 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