LUBA ANALYN BAYNOSA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1222/2023

[2026] HKCFI 3474

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1222 OF 2023

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 / the Applicant being absent in open court;

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

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of the Philippines who last arrived in Hong Kong on 27 August 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 21 August 2021 or within 14 days of its early termination, but when her employment was prematurely terminated on 7 February 2021, she did not depart and instead overstayed, and was arrested by police on 22 September 2022. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to the Philippines she would be harmed or killed by her maternal uncle who had sexually abused her in the past. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in San Andres, the Philippines by her maternal grandmother after her parents had passed away when she was a child, and where she resided together with her maternal uncle and his family.

3.  When she was a teenager in high school, her uncle had on various occasions sexually abused her with threats to kill her if she dared to disclose the abuses to anyone, and as a result she was afraid of her uncle and did not tell anyone of the abuses.

4.  After leaving school and in order to get away from her uncle’s threats, the Applicant left the country for Singapore to work as a domestic helper until 2007 when she returned to the Philippines to marry her husband, and on one occasion during a family gathering in her grandmother’s home and in the presence of her grandmother, her uncle and his wife, and her husband, the Applicant revealed her abuses by her uncle who however denied it that nobody seemed to believe the Applicant, and thereafter her uncle repeated his threats to kill her if she dared to raise the matter again.

5.  However, her relationship with her husband started to deteriorate, and so the Applicant decided to leave the country again by coming to Hong Kong later in the same year to work as a foreign domestic helper, and eventually her husband divorced her and married another woman.

6.  In 2018 when she returned to the Philippines for holiday and stayed in her grandmother’s home, her uncle who happened to be there again made the same threat against her, and so the Applicant was afraid to return to the Philippines, and when her last employment was prematurely terminated in February 2021, she did not return to the Philippines and instead overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 3 November 2022 and attended screening interview before the Immigration Department with legal representation.

7.  By a Notice of Decision dated 22 December 2022 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her uncle upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from her uncle, that there is no evidence of any real intention of her uncle to seriously harm or kill her other than just empty threats for her not to disclose his past abuses to anyone, that in any event it was a private and personal dispute between just the 2 of them and within their family only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 114 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Davao City or Cebu where it would be difficult if not impossible for her uncle to locate her.

9.  On 5 January 2023 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 9 May 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 26 June 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her uncle that caused her to overstay in Hong Kong to seek protection, that even if her account of sexual abuses and threats from her uncle were true that there was no reliable evidence of any real intention of her uncle to seriously harm or kill her other than just empty threats, and that in any event it was a private and personal dispute between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to the Philippines as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her uncle that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 19 July 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge of the Board’s decision.

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

13.  In the Applicant’s case, the Board rejected her claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16.  Moreover, the Applicant has recently on 24 April 2026 in writing requested to withdraw her application as her issues in her home country have been resolved that she now wants to return to the Philippines as soon as possible.

17.  As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no more issue for her to return to her home country, I accordingly dismiss her leave application.

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