NAVARRO RHEA JOY PANIERGO v. TORTURE CLAIMS APPEAL BOARD

HCAL 2194/2023

[2025] HKCFI 6179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2194 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 44-year-old national of the Philippines who last arrived in Hong Kong on 18 April 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 27 October 2020, she did not depart and instead overstayed, and was arrested by police more than 2 years later on 18 April 2023 for which she was subsequently convicted and sentenced to prison for 8 weeks. After she was discharged from prison and was referred to the Immigration Department for deportation, 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 creditor for failing to repay her debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Concepcion, Iloilo, the Philippines. After leaving school she went to Taiwan to work in the factory, and in 2007 she returned to the Philippines to marry her husband and moved to his home in Barangay San Agustin, San Miguel, Iloilo to raise a family with a son in his home district.

3.  In 2014, she started to come to Hong Kong to work as a foreign domestic helper, but in December 2019 she was informed by her husband that he had used her name to borrow a loan from some local money-lender for his use, and for which he required her to remit money to him every month for repayment by monthly instalments which she did, but when her last employment was prematurely terminated in October 2020 and was unable to remit any more money to her husband, whereupon her creditor started to send messages to her threatening to kill her, and so she was afraid to return to the Philippines and therefore 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 23 August 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 14 September 2023, 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”).

5.  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 creditor upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from her creditor, that there is no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary 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 116 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 creditor to locate her.

6.  On 28 September 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 20 November 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 27 November 2023, her appeal was dismissed by the Board which also confirmed the Director’s decision.

7.  In its decision[1], the Board accepted the Applicant’s claim of fear of harm from her creditor but found no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, and that in any event it was a private monetary dispute between just her and her creditor 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 creditor that her claim for non-refoulement protection failed on all applicable grounds.

8.  On 8 December 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 put forward the following grounds for her intended challenge:

(1)  That the Adjudicator did not consider her claim and just dismissed it without even taking time to think about her life;

(2)  That the Adjudicator unreasonably refused to allow her to submit her documents in her native language without translations and refused to give her time to arrange for their translations;

(3)  That the interpreter was impatient and did not help her with the interpretation of her case during her hearing before the Board.

9.  These are however 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 refused to give her time to arrange for the translation of her documents, or what documents that she had intended to submit for her claim which she has even up to now failed to identify them or produce any of them for the court’s consideration, or in what way was the interpreter impatient or unhelpful during the hearing of 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, and as she also did not request any oral hearing for her application, I do not find any of them reasonably arguable for her intended challenge.

10.  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 her 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.

11.  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.

12.  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.

13.  Moreover, the Applicant recently on 8 December 2025 filed an Affidavit requested to withdraw her application as her problems in her home country have been resolved that she now wants to return to the Philippines.

14.  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 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