REPONOYA ARLYN ESPINOSA v. DIRECTOR OF IMMIGRATION

HCAL 2657/2025

[2026] HKCFI 400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2657 of 2025

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 1 December 2025 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 21 November 2025 (the “2025 Notice”) refusing her request to make a subsequent claim (the “Request”).   

2.  The Applicant is a Filipino.  She had worked in Hong Kong as a foreign domestic helper since June 2009.  She overstayed since 13 May 2015 after her employment contract was terminated.  On 29 July 2016, she made a claim for non-refoulement protection claiming that she would be harmed or killed by her husband because of a domestic dispute, if refouled (the “previous claim”).  The centerpiece of her case was that her husband had tried to run her down with a car and assaulted her in August 2014. 

3.  Her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”) and rejected by the Director’s decision in his Notice of Decision dated 16 August 2017 (the “2017 Notice”).  Her appeal against the Director’s decisions in the 2017 Notice was dismissed by the Board’s decision dated 26 October 2018 (the “Board’s Decision”).   The Board found her incredible and rejected the centerpiece of her case.  Though the Board accepted the husband had inflicted domestic violence on her between 2005 and 2008, it found no evidence that she had suffered physical or mental harm of the requisite severity or that her husband’s conduct evinced an intention to escalate or carry out his threat by killing her.  It also found on the basis of credible country of origin information that adequate state protection would be available to the Applicant.  Her application for leave to apply for judicial review of the Board’s Decision was also refused by this Court’s decision dated 28 May 2021.  Her previous claim had run its full course on 25 October 2024 when the Court of Appeal refused her leave to appeal to the Court of Final Appeal against its decision upholding this Court’s refusal to allow her extension of time to appeal this Court’s decision refusing her leave to apply for judicial review.  However, the Applicant still did not leave Hong Kong.  About seven and half months later, she made the Request by letter dated 19 June 2025.  

The law

4.  Under the USM, a person who has previously made a non-refoulement claim may not make a subsequent claim except pursuant to section 37ZO of the Immigration Ordinance.  The section requires an applicant to show to the satisfaction of an immigration officer: (i) a significant change of circumstances since the previous claim was finally determined or withdrawn; and (ii) that the change, when taken together with the materials previously submitted in support of the previous claim would give the subsequent claim a realistic prospect of success.  In deciding whether the applicant may make a subsequent claim, the immigration officer may take into account any finding of credibility or fact made by the immigration officer or the Board in relation to the previous claims made by the applicant.

The intended subsequent claim

5.  In response to her Request, an immigration officer advised her by letter dated 16 July 2025 of the requirements for making a subsequent claim and the availability of the publicly-funded legal assistance.  At her request, the officer also referred her case to the Duty Lawyer Service (“DLS”) on 24 July 2025.  The Applicant was granted legal representation with effect from 18 August 2025.  Then the DLS filed two statements by the Applicant, ie Letter 2 and Letter 3 in support of her subsequent claim.

6.  The Applicant’s subsequent claim is founded on her fear of harm from her husband and from a creditor, introduced to her by her friend, Jenalyne.  She claimed that she borrowed 60,000 Philippine Pesos and 40,000 Philippine Pesos from the creditor at a monthly interest of 10% for her father’s medical treatment in late May and June 2005 respectively.  As her father’s condition worsened towards the end of 2009, she had to borrow three further sums of 100,000, 60,000 and 40,000 Philippine Pesos from her creditor.  Soon, she was unable to pay the monthly interest in full and on time.  Since late August 2014, she severed all contacts with anyone in the Philippines. She continued to pay interest until March 2015 when her employment was terminated.  Believing that she could find alternative employment, the creditor tolerated.   Then in May 2025, Jenalyne contacted the Applicant via Facebook and informed her of the death threat issued by the creditor.

The immigration officer’s decision

7.  The immigration officer took into account the decision of the case officer as well as the Board’s Decision in the previous claim.  He found the Applicant’s fear of harm from her husband had been considered in the previous claim.  That fear of harm is of the same nature or from the same source and does not amount to a significant change of circumstances warranting the making of a subsequent claim.

8.  As for her new fear of harm, the immigration officer took the view that it is technically not a situation that happened after her claim was finally determined.  Nevertheless, the officer put aside that technicality and considered her new claim, but rejected it as incredible. 

9.  On the Applicant’s case, the new harm existed, but she was unaware of it as she had severed all contacts with people in the Philippines after late August 2014 and had not received any threats before she made the previous claim.  That explanation contradicted her statement in the non-refoulement claim form dated 20 July 2017 that she was still in contact with a friend at that time.  When confronted with this inconsistent statement, the Applicant explained that by that statement she only meant she had “cut all contact regards to the loan”.  The immigration officer rejected her explanation as unconvincing in that she would specifically sever contact with individuals associated with the loan in 2014 while she was still actively repaying the creditor. 

10.  Furthermore, the Applicant claimed in Letter 2 that she had borrowed 300,000 Philippine Pesos by the end of 2010 because she had no savings.  She had to pay monthly interest of 30,000 Philippine Pesos, equivalent to HK$5,172 in 2010.  She confirmed in Letter 3 that she had paid her interest on time from late 2010 until about March 2015 with her monthly salary as a foreign domestic helper.  But according to her employment contract dated 12 October 2010, her monthly salary was only HK$3,580. It is not possible that she could have paid the interest as she alleged.  This implausibility undermined the veracity of her claim of having borrowed 300,000 Philippine Pesos from the creditor.

11.  The immigration officer also found from updated COI that there is no change of situation in the Philippines that would lead to the unavailability of state protection and internal relocation alternative for the Applicant in relation to the alleged harm from her husband. 

12.  For all these reasons, the immigration officer was not satisfied that the Applicant met the requirements for making a subsequent claim and issued the 2025 Notice on behalf of the Director.

The legal principles applicable to judicial review

13.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[1].

Grounds for judicial review

14.  The Applicant did not advance any grounds for judicial review in her Form 86.   After the above legal principles were explained to her, she confirmed she had no complaint about errors of law, procedural unfairness or irrationality in the immigration officer’s decision. She reiterated that her life is still in danger in the Philippines and she could not return to her home country.  In effect, this is a direct challenge of the immigration officer’s finding of fact which is not permissible in an application for judicial review.  In the absence of proper or arguable grounds of application, the court in an application for leave to apply for judicial review could only focus on errors of law, procedural unfairness or irrationality in the decision of the decision maker.

Overall scrutiny

15.  Having considered the Request, the Director’s 2025 Notice, the 2017 Notice and the Board’s Decisions in the previous claim and having rigorously examined the 2025 Notice with anxious scrutiny, the Court is satisfied that the immigration officer had correctly set out the law and key legal principles relating to the making of a subsequent claim under section 37ZO of the Immigration Ordinance; correctly identified the issues; and properly analysed the evidence.  On the evidence as presented by the Applicant, it was open to the immigration officer to reject her new claim as incredible.  The officer gave full reasons for his finding. This is a finding of fact solely for the decision maker, which the Court in an application for judicial review may not interfere.  The Court could not detect any error of law in that finding of fact or in the 2025 Notice.

16.  The immigration officer observed a very high standard of fairness.  He advised the Applicant on the law and procedure in prosecuting his Request and advised her of her right to legal representation and the availability of publicly funded legal assistance.  The Applicant was legally represented by the DLS which made two submissions on her behalf.  The Applicant could have no valid complaint about procedural unfairness in the immigration officer’s processing of her Request.

17.  This Court could detect no error of law in the 2025 Notice.  The 2025 Notice does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review has no realistic prospect of success. 

Conclusion

18.  For the above reasons, the Applicant’s application for leave to apply for judicial review of the Director’s decision in his 2025 Notice of Decision is refused.

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