Aguisanda Marjirie Bulat Ag v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1420/2023

[2026] HKCFI 4238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1420 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 as follows:-

a.  the Torture Claims Appeal Board /  Non-Refoulement Claims Petition Office be named as the Putative Respondent; and

b.  the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 15 August 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 3 August 2023 (the “Board’s Decision”).

2.In the Form 86, the Applicant has named both the Board and Director of Immigration (the “Director”) as the proposed respondents and the Board as the proposed interested party. As it is trite that the Board should be the proposed respondent whereas 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 had been set out in detail in the Board’s Decision, and it is not necessary to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. In short, the Applicant came to Hong Kong in February 2021 to work as a domestic helper. She remained in Hong Kong despite the termination of her employment contract on 13 September 2021. Her reason for seeking non-refoulement protection is that she was unable to repay a loan (the “Loan”) she had taken from an individual called “Ramon Alcala” (the “Adversary”). She fears that, if she were to return to her home country, she would be killed or seriously harmed by the Adversary.

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.The relevant general principles are well established. Judicial review does not operate as a further avenue of appeal. Though in non-refoulement cases, the Court applies a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court must not usurp the role of the Board. Assessment of evidence, country of origin information (“COI”) materials, risk of harm, availability of state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board, see: Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

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.Regrettably, the Applicant did not provide any grounds in support of the Leave Application in her Form 86 or affidavit in support. On this point alone, the Leave Application should be dismissed.

9.At the Hearing, the Applicant just told me she wishes to stay here in Hong Kong to take care of her infant child who was born in Hong Kong. I was also told that the child’s father is Hong Kong resident and the child also has the right to remain in Hong Kong. Unfortunate as it may be, this does not assist that Applicant’s case. As held by the Court of Final Appeal in Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59 at §§38-50, the Applicant, as a non-permanent resident of Hong Kong, is not entitled to rely on family unity as a ground to remain in Hong Kong in this type of application by virtue of the reservation for immigration legislation under s.11 of the Hong Kong Bill of Rights Ordinance (Cap 383).

10.In any event, after considering the Board’s Decision, I do not find any error of law, procedural unfairness or irrationality. 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.The Board’s Decision was comprehensive with adequate reasons provided. In particular, the Board was plainly correct in finding that there is no evidence of any real risk of serious harm as the Applicant’s evidence was incredible, in particular that:-

(1)  The Applicant’s evidence defies common sense. Whilst the Adversary had alleged threatened the Applicant through the Applicant’s brother (the “Brother”). The Adversary had never harmed the Brother even though the Brother allegedly acted as guarantor of the Loan (§§10e-f, 29, 31).

(2)  The alleged connection of the Adversary to a local politician is vague and the Applicant was unable to provide any details (§34).

12.In any event, the threat from the Adversary is at best localised. As found by the Board, the Applicant, as an able-bodied adult with a reasonable level of education and some working experience, should have no difficulty relocating to places such as Manila, Quezon or Davao. There is no evidence that she would face any persecution or harm after relocation (§§39-40).

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

14.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, leave is refused.

Conclusion

15.In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 16^th 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