Mondenedo Nisan Sentillas v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1288/2023 [2026] HKCFI 4148 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1288 of 2023 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord 53 r 3) Following;
Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:
Observations for the Applicant: Introduction 1.By Form 86 filed on 26 July 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 20 July 2023 (the “Board’s Decision”). 2.In the Form 86, the Applicant has named the Board as both the proposed respondent and the proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, 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 Applicant’s background, the basis and history of her claim and the arguments she advanced are set out in the Board’s Decision, and it is unnecessary to repeat the same herein. The hyperlink to the Board’s Decision is included below[1] for reference. The gist of the Applicant’s non-refoulement claim is that she will be subject to serious harm by her husband (the “Husband”) if she were to return to her home country, the Philippines. The reason for harming her is that the Applicant had entered into a romantic relationship with another individual (the “Romantic Partner”). 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 has completely failed to identify any ground of review in her Form 86 and the affidavit in support. At the Hearing, the Applicant submitted that there was nothing she would like to add to her application. The absence of any proposed ground of review is fatal to the Leave Application. 9.In any event, I have considered the Board’s Decision in detail. I do not find any error of law, procedural unfairness or irrationality (even on the enhanced Wednesbury standard). 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. 10.The Board’s Decision was comprehensive with adequate reasons provided. In particular, the Board was plainly correct in finding that there was no evidence of any real risk of serious harm, given that, taken at its highest, the threat from the Husband was in the nature of domestic violence and the Husband had only made verbal threats to the Applicant and the Romantic Partner (who was in the Philippines at all material times) (§§36-40). 11.The Board was right to reject the Applicant’s contention that she cannot relocate to other parts of her home country. The Applicant, as an able-bodied adult with reasonable education and working experience, should have no genuine difficulty relocating to places such as Cebu. There is no evidence that she would face any persecution or harm after relocation. The threat from the Husband is localised and there is no suggestion that the Husband has capability and the determination to track down the Applicant throughout the Philippines (§§42-44). 12.In such circumstances, the Board’s Decision satisfies the enhanced Wednesbury test and cannot be said to be irrational. 13.The Applicant’s intended challenge of the Board’s Decision is not 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 16th 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
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