ANAPEN PHOEBE SHIELA BAYOG v. TORTURE CLAIMS APPEAL BOARD

HCAL 555/2023

[2026] HKCFI 1554

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 555 OF 2025

  Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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

Observations for the Applicant:

1.  The Applicant is a 36-year-old national of the Philippines who last arrived in Hong Kong on 1 May 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 11 July 2020 or within 14 days of its early termination, but when her employment was prematurely terminated on 28 July 2019, she did not depart and instead overstayed, and on 7 December 2020 she surrendered to the Immigration Department and 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 husband for failing to help him to repay his debts.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Malagnat, Pinukpuk, Kalinga, the Philippines. After leaving school she married her husband and raised a family with 3 children in her home district.

3.  During the marriage her husband who was a farmer with little income but was often in debts, and when pressed by his creditors for repayments, he would easily lose his temper and beat the Applicant, and so to help him to pay off his debts, the Applicant in 2014 started to work as a domestic helper in Dubai and later in Hong Kong by remitting money to her husband in the Philippines every month to help him to repay his debts.

4.  However, when her last employment was prematurely terminated in July 2019, and when she was unable to remit any more money to him, her husband became furious and threatened to kill her when she returned, and so the Applicant was afraid to return to the Philippines and therefore overstayed in Hong Kong and subsequently raised her non‑refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 14 September 2021 and attended screening interview before the Immigration Department with legal representation.             

5.  By a Notice of Decision dated 29 October 2021 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”).

6.  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 husband upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill her other than to press her for money, that in any event it was a private domestic 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 110 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 Manila where it would be difficult if not impossible for her husband to locate her.

7.  On 10 November 2021 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 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 23 March 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1] the Board similarly found no reliable evidence of any real intention of her husband to seriously harm or kill the Applicant other than angry words and empty threats, and that in any event it was a private domestic 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 husband that her claim for non‑refoulement protection failed on all applicable grounds.    

9.  On 6 April 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she puts forward the following grounds for her intended challenge:

(1)   That the Adjudicator failed to properly consider her claim and just dismissed it without taking any time to think about her life;

(2)   That the Adjudicator unreasonably refused to allow her to submit her supporting documents without translation and also failed to give her time to arrange for their translation;

(3)   That the interpreter was unhelpful and impatient to the Applicant during her hearing before the Board.        

10.  These are however all just some bare and vague assertions of the Applicant without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take proper consideration of her claim or unreasonably refused to allow her to submit her supporting documents without translation or to give her time to arrange for their translation, or in what way was the interpreter unhelpful or impatient to her during her appeal before the Board.  As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable 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 fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her 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.                

13.  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.

14.  Moreover, the Applicant has recently on 24 February 2026 in writing requested to withdraw her application as her problem in her home country has been resolved that she now wants to return to the Philippines.

15.  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 problem 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