ROBEJES MYLEN HERRADURA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1656/2021

[2026] HKCFI 3004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1656 of 2021

Application for Leave to Apply for Judicial Review

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

Following;

1.   The Form 86 be amended to name the Director of Immigration as a putative interested party; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 6 December 2021, the Applicant sought leave for judicial review of a decision dated 4 November 2021 of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (respectively “the Board” and “the Board’s Decision”). The Board’s Decision was made after the Board’s hearing on 6 October 2021 of the Applicant’s appeal/petition against the Director of Immigration (“DI”)’s first tier decision dated 26 July 2021.  A copy of the Board’s Decision can be seen by the following hyperlink[1].

2.  The Applicant is a Filipino national having previously worked in Hong Kong as a foreign domestic helper.  She last arrived in Hong Kong on 18 February 2019 and was permitted to remain as a domestic helper until 31 July 2020 or two weeks after termination of contract, whichever is earlier.  Her contract was prematurely terminated on 22 May 2019, and she surrendered to the DI on 22 September 2020 having overstayed (i.e. been in breach of the condition of stay) in Hong Kong. 

3.  She claimed that, if refouled, she would be killed or harmed by one Andres who was allegedly a former Mayor in the Philippines.  The Board accepted that Andres had verbally threatened the Applicant once in 2015, when they physically met.  The threat was that if the Applicant did not pay back 1 million peso to Andres, “something bad will happen”.  There was no threat to harm or kill, and it was the only threat given by Andres against the Applicant directly.  The Board also accepted that Andres had found the Applicant’s family members through their common friends several times in 2019 to demand repayment, but there was no evidence Andres had escalated or actualized his previous threat to subject the Applicant to a real or substantive risk of ill-treatment.  It was against such background that no applicable ground was found to have been made out.  Available protection from the Government of the Philippines, non-applicability of the Refugees Convention (for want of a Convention ground), lack of evidence of official/passive acquiescence and availability of internal relocation alternative were also found to support the decision to dismiss the appeal/petition. 

4.  In the papers filed for this application and the oral hearing before this Court, the Applicant has presented no ground of illegality, irrationality or procedural unfairness against the Board’s Decision.  It is trite that judicial review is not a rehearing of the merits of a non-refoulement claim.  In the absence of any valid argument that the Board had committed a legal error, been irrational in its reasoning and conducted its procedure unfairly, this Court cannot intervene. 

5.  I have considered the Board’s Decision vigorously, but am unable to detect any reasonable argument that it should be quashed.  This application for leave to apply for leave is therefore dismissed.  

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