CALMA MERY AN JAVIER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]
HTML content
HCAL 899/2023
[2026] HKCFI 331
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 899 of 2023
BETWEEN | ||
| Calma Mery An Javier | Applicant | |
| and | ||
| Torture Claims Appeal Board / Non-Refoulement Claims Petition Office | Putative Respondent | |
| and | ||
| Director of Immigration | Putative | |
| Interested Party | ||
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 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 JudgeLevy:
1. The Form 86 be amended on the court’s own motion.
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Background
1. By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 8 June 2023, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 23 May 2023 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 10 January 2022 rejecting the applicant’s non-refoulement claim based on all applicable grounds. The Board’s Decision is set out in the following hyperlink: -
2. In the Form 86, the applicant did not name any interested party. As the Director should have been the proper interested party, the Form 86 shall be accordingly amended on the court’s own motion.
3. The basis of the applicant’s claim was that, if refouled to Philippines, she would be harmed or killed by (i) her creditor for two unpaid loans and (ii) her husband for her extra-marital affair with an Indian non-refoulement claimant in Hong Kong. The reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.
4. On 21 October 2025, the Removal Assessment and Litigation (Removal and Deportation) Section (1) of the Immigration Department faxed a letter to the court, informing the court that the applicant would like to withdraw her judicial review application. Enclosed with the said letter was the applicant’s signed memo in English. In the memo, the applicant stated that she would like to withdraw the Leave Application as she wanted to go home as soon as possible. Her issues in her home country had been resolved. In the circumstances, this court will dispose of the Leave Application on paper.
Discussion
5. The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.
6. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The applicant’s Form 86 and the supporting affirmation provided no such grounds.
7. As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness, or irrationality.[3] In the present case, the Board found that the applicant’s evidence was brief, lacking in detail as to why either the creditor or her husband would pose a serious threat to her safety if refouled. It found that the applicant would not face any risk of harm. The Board further found that internal relocation would be reasonably available. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.
8. Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86 or otherwise. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[4].
Withdrawal application
9. Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi[2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board[2024] HKCA 1140.
Order
10. Form 86 be amended on the court’s own motion.
11. The applicant’s application for leave to apply for judicial review be dismissed.
Dated the 19th day of January 2026
| ( Alfred CHAN ) 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 the Applicant’s 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 to the Applicant on 19/1/2026 Calma Mery An Javier Applicant’s ref. no: Nil. | Sent 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 19/1/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 19756 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1938/21 (formerly RBCZ/402/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) |
Form CALL-1
[1] Re Zunariyah[2018] HKCA 14 at §23.
[2] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at §142.
[3] 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.
[4] Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.