LAGMAY RUBILYN CORTEZ alias LAGMAY RUBILYN C. alias CORTEZ RUBILYN alias LAGMAY RUBILYN v. TORTURE CLAIMS APPEAL BOARD

HCAL 2071/2023

[2025] HKCFI 4964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2071 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 49-year-old national of the Philippines who last arrived in Hong Kong on 6 February 2019 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 12 August 2022, she did not depart and instead overstayed, and was arrested by police on the same day for theft, for which she was convicted and sentenced to prison for 10 weeks. After her discharge form 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 creditors over her unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Ilocosur, the Philippines.  After leaving school she worked as a foreign domestic helper in Hong Kong so as to support her 2 children born out of wedlock with her former boyfriend.

3.  In 2002 she returned to the Philippines to stay with her mother who was suffering from poor health, and to meet her mother’s medical expenses the Applicant in 2014 borrowed a loan from a local money-lender with monthly interest payments which she initially managed to make from her own savings.

4.  By end of 2014 she had run out of money to meet even her own living expenses, and so in December 2014 the Applicant borrowed another loan from another money‑lender, and in order to meet her loans repayments, the Applicant then returned to work as a foreign domestic helper in Hong Kong in May 2016, and to make monthly remittances to the Philippines for the repayment of her loans by installments. 

5.  However, when her last employment was prematurely terminated on 12 August 2022, and when she defaulted with her loans repayments, her creditors then made threats against her, and so she 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 5 January 2023 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 3 February 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”).

7.  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 creditors upon her  return to the Philippines as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her creditors to seriously harm or kill her other than to press her to repay her debts, that in any event these were private monetary disputes between her and her creditors 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 114 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 where it would be difficult if not impossible for anyone to locate her.

8.  On 9 February 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 11 August 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 20 October 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from any creditor over any loan that caused her to overstay in Hong Kong to seek protection, that even if her account of events in the Philippines were true that there was no reliable evidence of any real intention of either of her creditors to seriously harm or kill her other than to press her to repay her debts, that none of her family members have ever been threatened by her alleged creditors, nor did she have any updated information relevant to her claimed loans since 2015 other than her own speculations that it is not accepted that there would still be any adverse interest in her from any creditor, and that in any event these were private monetary disputes between her and her alleged creditors 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 anyone that her claim for non-refoulement protection failed on all applicable grounds. 

10.  On 21 November 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  That the Board was in breach of procedural fairness by unlawfully fettering its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  That the Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural error or unfairness;

(4)  That the Board failed to meet the greater care and duty owed to a self‑represented claimant;

(5)  That the Board had significantly relied on the source of news not officially recognized or were simply hearsay or outdated with the lack of credible source of information that resulted in its groundless speculations that it is safe for the Applicant to return to his home country;

(6)  That the hearing bundle was given to the Applicant just a few days before her appeal hearing before the Board with the majority of documents in English thereby giving her insufficient time to prepare for the haring due to her limited skills in English and being unrepresented which is procedurally unfair to the Applicant.  

11.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but 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 unlawfully fetter his discretion or how did he fail to take into account of relevant COI or what source of news were not officially recognized or were hearsay or outdated, while there is no reliable or documentary evidence to corroborate her assertion that the hearing bundle was given to her late or just a few days before the hearing before the Board, of which she never raised any issue to the Board or requested any adjournment of the hearing or asked for more time to prepare for the hearing, while most of the documents in the hearing bundle had in fact already provided to her via her lawyer during her screening interview before the Director that she was already familiar with, nor is it accepted that she cannot read or write English that it is not accepted that there is any merits in this complaint of the Applicant as alleged. 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 his intended challenge.

12.  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.

13.  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 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, 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 in writing requested to withdraw her application as her issues in her home country have been resolved that she now wants to return to her home country as soon as possible.

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 of no more issues 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