Case Document

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HCAL 2230/2024

[2026] HKCFI 5662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2230 OF 2024

BETWEEN

	Lawa Faith Hope Baoding	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the applicant or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, the name of the putative interested party be amended to “Director of Immigration”.

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

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 22 November 2024, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 12 November 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL002230_2024_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 5 August 2024, which rejected the applicant’s non-refoulement claim.

Amendment

3.In Form 86, the applicant named the Board as both the putative respondent and the putative interested party.

4.In fact, the Board should only be named as the putative respondent, and the Director should be named as the putative interested party.

5.This court therefore makes an order on its own motion to amend the name of the putative interested party to “Director of Immigration”.

The applicant’s case

6.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, she would be killed by her husband, Mr Erio Tucnoy, as she stole his money to flee from the Philippines since he often inflicted ill-treatment on her.

Disposal on paper

8.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

9.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

10.The applicant did not advance any grounds for the intended judicial review in Form 86, nor in her supporting affidavit dated 22 November 2024. The applicant merely mentioned in the said affidavit that she would like to reject and review the Board’s Decision as they disregarded her dangerous situation.

Discussion

11.First of all, the applicant’s danger from her husband in her country had been duly assessed but rejected by the Board. If she intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

12.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

13.Thus, despite the fact that the applicant failed to advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

14.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 3 October 2024. The applicant was present and was thus given the chance to present her case to the Board in person.

15.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. Its findings and assessment of the applicant’s claim against all the applicable grounds under the USM were laid out in paragraphs 19 to 61 of the Board’s Decision, and it is not necessary to repeat the same here.

16.In gist, the Board found that the applicant had failed to show that the alleged persecution by the husband was or would be caused by one of the RC[1] reasons. The disputes between the applicant and her husband were plainly private in nature. From the applicant’s evidence, the Board found that the previous assaults by the husband were relatively minor, otherwise the applicant would have needed to seek medical treatment in a hospital. The Board was also of the view that if the previous ill-treatments were severe, the applicant would not have returned to live with him. The Board found that the severity of pain and suffering, whether physical or mental, did not reach the minimum level of severity required for international protection.

17.Further, the applicant had never reported any of the assaults by her husband to the police or other authorities. The Board had gone through very extensive country of origin information (“COI”) in its assessment of the availability of state protection to the applicant in paragraphs 34 to 49 of the Board’s Decision. Based on the objective COI and the facts of the applicant’s case, the Board found that reasonable state protection was available to the applicant in the Philippines to protect her from the alleged threats.

18.Moreover, the Board had also assessed the viability of internal relocation for the applicant as a matter of caution in case the Board was wrong and the applicant did in fact face a real risk of proscribed harm in her home town. The Board had given its reasons in paragraph 68 of the Board’s Decision for the conclusion that internal relocation was a viable option to the applicant and it was not unduly harsh or unreasonable for her to relocate to other cities such as Manila and Cebu to avoid her husband if she was returned to the Philippines.

19.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

20.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

21.Having rigorously examined the Board’s Decision 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 the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

22.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

23.For reasons aforesaid, the Leave Application is dismissed.

Dated the 7^th day of October 2026

( Gladys LEE )
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 07/10/2026 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 07/10/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 24373 Director of Immigration Putative interested party’s ref. no.: QA T/C 752/24 (formerly as RBCZ 5000650/24) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)