Case Document

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HCAL 447/2024

[2025] HKCFI 669

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 447 OF 2024

BETWEEN
	Dela Cruz Felicidad Mina alias Dela Cruz Felcidad Mina alias Dela Cruz Felicidad alias Dela Cruz Felicidad M alias Mina Felicidad	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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;

Order by Deputy High Court Judge Bruno Chan:

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

Observations for the Applicant:

1.The Applicant is a 48-year-old national of the Philippines who last arrived in Hong Kong on 21 September 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment on 21 September 2020 or within 14 days of its early termination, but when her employment was prematurely terminated on 2 April 2020, and upon her subsequent application for extension of her visa was refused on 17 September 2020, she overstayed in Hong Kong until 27 November 2020 when 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 over her affair with another man in Hong Kong. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Malabon Rizal, Metro Manila, the Philippines. After leaving school she worked in the electronic factory, married her husband and raised a family with 3 children in her home district.

3.In 2006 she started to work as a domestic helper in Saudi Arabia and then in Hong Kong on and off since 2008 as a foreign domestic helper.

4.During her return to the Philippines in 2016, the Applicant discovered that her husband was having an affair with another woman, and after confronting him with the same during which he made threats against her, the Applicant therefore moved back to her parents’ home and subsequently returned to Hong Kong to continue to work as a foreign domestic helper.

5.In 2019 she met and formed a relationship with another man in Hong Kong, but it was later discovered by her husband who then threatened to kill her when she returned to the Philippines, and so when her last employment was terminated in April 2020, 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 August 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 20 September 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no 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, that there is no evidence of any real intention of to seriously harm or kill him, that in any event it was a private dispute between 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 110,000 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 where it would be difficult if not impossible for her husband to locate her.

8.On 30 September 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 21 July 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 28 February 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her husband that caused her to overstay in Hong Kong to seek protection, that even if her alleged account was true that there was no reliable evidence of any real intention of her husband to seriously harm or kill her due to their lengthy separation that it is not accepted that her husband would have any adverse interest in her or any real intention to carry out his threats against her, and that in any event it was a private domestic dispute between 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.

10.On 11 March 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she just repeated her claim as before and made bare assertions that the Adjudicator was impatient and did not give her sufficient time to make proper representation of her claim to the Board but without providing any necessary or relevant details or particulars or elaboration to corroborate her bare assertions. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge of the Board’s decision.

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.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 recently on 20 December 2024 filed an affirmation requesting to withdraw her application as she wants to return to the Philippines as soon as possible but without providing any further details or explanation as to what has happened to her claimed risk in her home country.

15.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, I refuse to grant leave and accordingly dismiss her application.

Dated the 25^th day of February 2025

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 25 February 2025 Dela Cruz Felicidad Mina alias Dela Cruz Felcidad Mina alias Dela Cruz Felicidad alias Dela Cruz Felicidad M alias Mina Felicidad Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 25 February 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 18873 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1383/21 (formerly as RBCZ 10641/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)