FIGUEROA LOIDA SURAL v. TORTURE CLAIMS APPEAL BOARD

HCAL 935/2020

[2025] HKCFI 1990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 935 OF 2020

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 49-year-old national of the Philippines who arrived in Hong Kong on 11 September 2009 with permission to work as a foreign domestic helper until the expiration of her employment contract on 11 September 2011 or within 14 days of its early termination, but when her employment was prematurely terminated on 15 August 2011, she did not depart and instead overstayed, and was arrested by police on 18 October 2011. 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 former boyfriend for having a relationship with another man in Hong Kong. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Samaloc, Manila, the Philippines. After leaving school she worked in a bakery shop, formed a relationship with her boyfriend Ryan, and raised a family with 2 children in his home town in Santo Tomas Town in Pangasinan.

3.  However, their relationship deteriorated over the years, and in 2009 the Applicant decided to leave Ryan by applying to work in Hong Kong as a foreign domestic helper, which she did on 11 September 2009 when she arrived to start her employment contract.

4.  During her employment in Hong Kong the Applicant met a local man with whom she soon formed a relationship, and when Ryan later learnt about it he became furious and made angry phone calls to the Applicant threatening to kill her when she returned to the Philippines, and so after her employment was prematurely terminated on 15 August 2011, the Applicant was afraid to return to the Philippines and therefore overstayed in Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 2 January 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  Whilst released on recognizance pending the determination of her claim, the Applicant had repeatedly failed to report to the Immigration Department on her recognizance over the years, and that she had also been arrested by police for the offence of theft on 3 separate occasions, for which she was charged, convicted and sentenced to prison for 2 weeks on each occasion.

6.  By a Notice of Decision dated 24 January 2020 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there would be any real risk of her being harmed or killed by her former boyfriend Ryan upon her return to the Philippines due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of Ryan to seriously harm or kill her other than some angry words and empty threats and that it is not accepted that after all these years since she left the country in 2009 that Ryan would still have any adverse interest in her, that in any event it was a private relationship dispute between just the 2 of them 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 105 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 Cebu or Davao City where it would be difficult if not impossible for her former boyfriend to locate her.

8.  On 12 February 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which she failed to attend the scheduled and re-scheduled oral hearings before the Board despite the Board’s invitation for her to do so in order to answer questions and to explain various issues raised by the Board regarding her claim, but which she declined and instead insisted that the Board dealt with her claim and appeal without any hearing and on papers based on the material and information provided by her earlier to the Director and were available before the Board in the hearing bundle, and which the Board subsequently did. On 19 May 2020 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision 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 Ryan that caused her to overstay in Hong Kong to seek protection, that there was no reliable evidence of any real threats from Ryan to seriously harm or kill her when even on her own case that she had maintained a monthly contact with Ryan from 2012 up to 2019 which the Board found inconsistent with her claim of fear of harm from him or that Ryan would pose any real threats to the Applicant or that such risk even if real would amount to the level of severity under any of the proscribed risks that it concluded that the Applicant does not face any real and personal foreseeable risk upon her to the Philippines that her claim for non-refoulement protection failed on all applicable grounds.

10.  On the same day of 19 May 2020 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 in her supporting affirmation of the same date, nor did she request any oral hearing for her application. 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.

11.  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.

12.  In the Applicant’s case, the Board rejected her claim for the thorough and detailed analysis and reasoning set out in its decision in the absence of any oral evidence or answers to questions raised of her claim from the Applicant who declined to attend any oral hearing or to give any further evidence despite invitation and advice by the Board for her to do so. As such, and in the absence of any error of law or procedural unfairness in his 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.

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

14.  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.

15.  Moreover, the Applicant recently on 28 March 2025 in writing requested to withdraw her application as it is now safe for her to return to her home country.

16.  In the premises, 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 that it is safe 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