Case Document

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HCAL 1766/2020

[2025] HKCFI 2234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1766 OF 2020

BETWEEN
	Bosito Mary Grace Matabang	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 38-year-old national of the Philippines who last arrived in Hong Kong on 29 December 2018 with permission to remain as such up to when she did not depart and instead overstayed, and was intercepted by immigration officers on 18 November 2019. She was charged and convicted for overstaying and taking up unapproved employment and was sentenced to 2 months’ imprisonment. After her discharge from prison, 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 abusive boyfriend. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Kalibo Aklan, the Philippines. After leaving school she cohabited with her boyfriend Bryan and raised a family with 3 children in her home district.

3.However, the Applicant soon discovered that Bryan would indulge in drinking gambling and taking drugs, and when drunk he would be abusive towards her, and so in 2012 she decided to leave him by going to work in United Arab Emirates as a domestic helper until 2014 when she returned to the Philippines, whereupon Bryan demanded money from her for his use, and when she refused, he then beat her, and so she placed her children in the care of her mother, and in September 2014 she left the country again for Hong Kong to work as a foreign domestic helper to support her children.

4.In December 2018 when she returned to her mother’s home in the Philippines for holiday, Bryan came to demand for money, and when the Applicant refused as she needed her money to support her children, he beat her and threatened to kill her, whereupon she left the country to return to Hong Kong to continue with her employment.

5.However, when her last employment was prematurely terminated on 13 January 2019, the Applicant 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 10 January 2020 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 27 April 2020 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 former boyfriend Bryan upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of Bryan to seriously harm or kill her other than to press her for money for his use, 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 109 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 Manila where it would be difficult if not impossible for Bryan to locate her.

8.On 7 May 2020 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 17 July 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 14 August 2020 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of fear of harm from her former boyfriend Bryan over their domestic disputes but found no reliable evidence of any real intention of Bryan to seriously harm or kill her other than to press her for money for his use, and that in any event it was a private relationship dispute between just 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 Bryan that her claim for non‑refoulement protection failed on all applicable grounds.

10.On 3 September 2020 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 or in her supporting affirmation of the same date in which she just repeated her claimed fear as before but without putting forth any proper ground for her intended challenge. 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.

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 28 March 2025 in writing requested to withdraw her application as it is now safe for her to return to 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, and in view of her latest confirmation that it is safe for her to return to her home country, I accordingly dismiss her leave application.

Dated the 3^rd day of June 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 3 June 2025 Bosito Mary Grace Matabang 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 3 June 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 16914/20/5/3/F1173 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 32/20 (Formerly RBCZ 10925/19) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)