Case Document

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HCAL 1895/2023

[2026] HKCFI 5757

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1895 OF 2023

BETWEEN

	Recapente Belinda Magada	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 in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and 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 19 October 2023, 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 6 October 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/2023/HCAL001895_2023_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 12 January 2023 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.In Form 86, the applicant named “TORTURE CLAiMS APPEA BOARD. NON-REFOULENT CLAiMS PETITION OFFICE” as the putative respondents, when only the Board should be so named. The applicant also named herself as the putative interested party, when the Director should be so named.

4.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

5.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and 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 harmed or killed by her ex-partner, Jun Rey Romalo (“Jun”), due to previous domestic violence and the applicant’s failure to honour an agreement made in 2015 to pay Jun 50,000 Philippine pesos in exchange for their separation.

Oral hearing

8.The applicant requested for an oral hearing and her case was heard on 8 October 2026.

9.When this court asked the applicant for the grounds of her intended judicial review, the applicant merely told this court that she did not want to go back due to her fear of threats against her life.

10.When this court asked her what was wrong with the Board’s Decision, she only said that she was not ready to go home and she was afraid of the threats against her.

Grounds for judicial review

11.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).

12.The applicant did not advance any ground for judicial review in Form 86, nor in her supporting affidavit dated 19 October 2023. In the said affidavit, the applicant only stated that she was not satisfied with the decision of the Immigration Department and her life was still in danger in her home country.

13.As aforesaid, at the oral hearing, the applicant merely said that she still did not want to go home, she was not ready to go back and she still feared the threats against her life.

Discussion

14.First of all, the applicant’s danger in her home country 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.

15.Furthermore, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision. There are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. 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). Thus, the applicant cannot ask this court to review the decision of the Immigration Department, as mentioned in her supporting affidavit. This court will deal with the Leave Application in respect of the Board’s Decision only.

16.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).

17.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

18.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 10 August 2023 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.

19.As can be seen from the Board’s Decision, the Board had duly considered the applicant’s claims.

20.The Board had laid out its detailed consideration of facts and the credibility of the applicant’s claims in paragraphs 49 to 72 of the Board’s Decision, and it is not necessary to repeat the same here.

21.In gist, on the totality of evidence, the Board had many concerns of the applicant’s claims, and considered the applicant’s claims and evidence problematic. Significantly, the Board noted that while identifying her own failure to pay Jun any money towards their agreement as her main reason to fear serious harm, torture or death from him since he approached her family to make threats in 2016, the applicant’s evidence was that she had not paid him anything to honour the agreement. However, the applicant’s evidence suggested that she could have paid Jun the agreed sum fully over several months from her Hong Kong salary payments, thereby extinguishing the claimed threats arising from its non-payment.

22.Thus, the Board found the applicant’s claim that she did not have enough money to pay Jun in the 8 or so years which had transpired since the claimed agreement was made was not supported by her work history or her oral evidence of her earnings and/or expenses. The Board was of the view that the applicant did not prioritise in paying Jun the money and it was not consistent with the applicant’s alleged fear of harm in connection with it.

23.On the evidence advanced, the Board was not satisfied that the applicant subjectively feared or objectively faced a real chance of harm from Jun for any of the reasons claimed, including her non-payment of their agreement and/or having a boyfriend. The Board did not accept that the applicant faced a real chance of serious harm, torture or death from Jun anywhere in the Philippines for any of the reasons claimed.

24.Thus, the Board was satisfied that the applicant was not at a real risk of any of the proscribed forms of harm upon her return to the Philippines.

25.Although the Board did not consider state protection and internal relocation, it was unnecessary to make findings on the availability of state protection as the Board found that the applicant did not face any real risk of harm from Jun.

26.As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

27.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm upon her return to the Philippines, it is not necessary for the Board to consider internal relocation.

28.The finding of facts, including the assessment of evidence and risk of harm, was primarily within the realm of the Board in dealing with her appeal/petition. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

29.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.

30.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

31.For reasons aforesaid, 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 21398 Director of Immigration Putative interested party’s ref. no.: QA T/C 1301/22 (formerly RBCZ 5001132/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)