Case Document

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HCAL 71/2024

[2026] HKCFI 5743

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 71 OF 2024

BETWEEN

	Candelaria, Irene Hernandez	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 the applicant being absent in open court;

Order by Deputy High Court Judge Michael WONG:

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

2.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.  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 5 January 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 27 December 2023 (“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/HCAL000071_2024_files/the_Board's_Decision.pdf

2.The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 19 January 2023 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendment

3.The applicant did not name any putative interested party in Form 86, when the Director should be so named.

4.This court therefore makes an order on its own motion to add “Director of Immigration” as the putative interested party.

The applicant’s case

5.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.

6.In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, she was at risk of being seriously harmed or killed by her husband Amar and also by her creditor Rebecca due to unpaid debts.

7.The applicant had separated from her husband, but claimed that Rebecca chased the applicant’s husband for repayment of the applicant’s debts after the applicant defaulted in repayment. Her husband had repaid 3 instalments for her, and said that if the applicant did not repay him the money or did not repay Rebecca, he would kill her.

Withdrawal of the Leave Application and the applicant’s absence at the oral hearing

8.The applicant requested for an oral hearing of the Leave Application, and a hearing was fixed on 8 October 2026. However, the applicant was absent at the hearing.

9.Moreover, the Director informed this court on 6 October 2026 that the applicant had written a letter dated 5 October 2026 to withdraw the Leave Application. In the said letter, the applicant stated that she wanted to return to her home country as soon as possible, her issues in her home country had been resolved and she could return home.

10.There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition. With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.

11.The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

12.Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant. This court will proceed to deal with the Leave Application.

Grounds for judicial review

13.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).

14.The applicant did not advance any ground for her intended judicial review in Form 86. In her supporting affirmation dated 5 January 2024, the applicant mentioned a few grounds for the intended judicial review, which are summarised as follows:-

(1)  She was a genuine non-refoulement claimant who faced all these dangerous problems, harassment and torture in her country and she was unable to find any place to stay safely;

(2)  She believed that the Director had reached the wrong decision and rejected her claim without any proper inquiry and without carefully understanding her situation;

(3)  If she did not run away, she certainly would have been killed by her enemies and her problems were getting more and more life-threatening day after day.

Discussion

15.First of all, the applicant’s alleged danger upon refoulement (referred to in Grounds (1) and (3) above) had been assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review unless there were errors of law, procedural unfairness or irrationality in the Board’s Decision.

16.Regarding her general allegation against the Director as mentioned in Ground (2) above, this cannot be a valid ground as the intended judicial review is about the Board’s Decision, not the Director’s Decision. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). Hence, Ground (2) can simply be ignored.

17.Moreover, the Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. Thus, the applicant’s general allegation against the Director (or even assuming it was made against the Board), as mentioned in Ground (2) above, cannot help the applicant at all.

18.In any event, the Board did not reject the applicant’s claim without any proper inquiry or without carefully understanding her situation. As can be seen from the Board’s Decision, the Board had carefully analysed the applicant’s risk upon refoulement and had made all the inquiry needed for the assessment of the applicant’s appeal/petition.

19.Thus, none of the grounds mentioned in the applicant’s supporting affirmation can be valid ground for the intended judicial review.

20.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).

21.Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

22.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 13 October 2023. The applicant was present at the hearing. Thus, the applicant did have a chance to present her case to the Board in person.

23.The Board had laid out its assessment of the applicant’s claims and evidence in paragraphs 84 to 91 of the Board’s Decision. In gist, the Board was unable to confidently dismiss the applicant’s claims as not credible, and hence decided to afford her the benefit of the doubt and accepted the core aspects of her claims about the past events in the Philippines.

24.However, in the Board’s assessment of the applicant’s risk against each of the applicable grounds under the USM in paragraphs 93 to 136 of the Board’s Decision, the Board found that the persons feared by the applicant, namely her husband and Rebecca, were and would be, at all relevant times, private individuals and not public officials. They were not, and would not be, acting in an official capacity in the context of the circumstances in which the applicant claimed to be at risk of being subjected to harm. The applicant’s case did not fall within the definition of torture under section 37U of the Immigration Ordinance.

25.Although the Board accepted the applicant’s case that there was a real risk that she would suffer mistreatment that would constitute CIDTP[1] or persecution if she returned to her home area, the Board found that reasonable state protection was available to the applicant upon refoulement, and that internal relocation was a viable option for her.

26.On the issue of state protection, the Board found that the available information indicated that the Philippine government had taken reasonable measures to protect the lives and safety of its citizens, and that reasonable system of state protection was available to the applicant in the event she sought assistance and protection from the harm she feared from her husband and Rebecca (see paragraphs 101 to 103 and 116 to 117 of the Board’s Decision).

27.The Board had also given full reasons in paragraphs 118 to 123 of the Board’s Decision for its conclusion that if the applicant returned to the Philippines, it would be reasonable for her to relocate to a city such as Manila or Cebu City, where she would not be at risk of being subjected to CIDTP or persecution.

28.Furthermore, the Board found no grounds to believe that the applicant faced a risk of being arbitrarily deprived of her life upon refoulement.

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

30.The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. The applicant’s alleged dangerous situations had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

31.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.

32.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.

33.Moreover, as the applicant had confirmed that her problems in her country had been resolved and she could return home, the basis of her non-refoulement claim no longer exists.

34.It is clear that the applicant no longer needs non-refoulement protection and the intended judicial review serves no practical purpose.

35.It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).

36.Even assuming that there were errors of law, procedural unfairness or irrationality in the Board’s Decision and the case were remitted to the Board for reconsideration, there would simply be no more basis for the applicant to claim non-refoulement protection as it was no longer unsafe for her to return to her own country. The Board should assess the risk of the applicant at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation (see Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743).

37.It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review even if there were merits in it. Thus, the Leave Application ought to be dismissed for this reason as well.

Conclusion

38.For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.

Dated the 14^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: 14/10/2026 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: 14/10/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 21424 Director of Immigration Putative interested party’s ref. no.: QA T/C 1250/22 (formerly RBCZ 5001134/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)