Case Document

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HCAL 765/2024

[2025] HKCFI 2590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 765 OF 2024

BETWEEN
	Lumanog Christina Peromingan	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:

1. Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 20 July 2023 be refused; and

2. The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 43-year-old national of the Philippines who last arrived in Hong Kong on 14 July 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 14 April 2022, she did not depart and instead overstayed, and on 22 May 2022 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 former boyfriend for ending their relationship.

2.The Applicant was born and raised in Barangay Look, Calatrava, Negros, Occidental, the Philippines. After leaving school she formed a relationship with her boyfriend Greg and raised a family with a son in her home district.

3.However, she soon discovered that Greg was often in debts, and to help out with their family’s finance, the Applicant in 2016 went to Brunei to work as a domestic helper.

4.In 2018 she was told by Greg that he had used her name to borrow a loan and for which he needed her to earn more money to help him to repay his debts, and so the Applicant in April 2018 started coming to Hong Kong to work as a foreign domestic helper.

5.However, in December 2020 she met and fell in love with another man in Hong Kong, but when she subsequently informed Greg of her wish to end their relationship, Greg became furious and threatened to kill her, and so when her last employment was terminated 14 April 2022, she was afraid to return to the Philippines and therefore overstayed in Hong Kong, and on 23 May 2022 she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 24 August 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 23 September 2022 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 substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her former boyfriend Greg upon her return to the Philippines due to the low intensity and frequency of past ill‑treatment from him, that there is no evidence of any real intention of Greg to seriously harm or kill her other than angry words and empty threats, 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 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 Quezon City where it would be difficult if not impossible for Greg to locate her.

8.On 5 October 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which she failed to attend the scheduled hearing on 4 May 2023 without any explanation, nor did she subsequently respond or reply to the Board’s written inquiry for her non-attendance or make any request for another oral hearing, and that the Board proceeded to deal with her appeal in her absence and on papers. On 20 July 2023 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 threats from her former boyfriend Greg but found no reliable evidence of any real intention of him to seriously harm or kill the Applicant over what was essentially a private relationship dispute between just the 2 of them only them 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 Greg that her claim for non-refoulement protection failed on all applicable grounds.

10.On 14 May 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 or her supporting affirmation of the same date in which she just stated that the decision is unfair and unreasonable but without providing any necessary or relevant details or particulars or elaboration as to how it is so.

11.By then the Applicant was also out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

12.As the last day of the three-month period for her to file her Form 86 fell on 20 November 2023 after discounting the month of August 2023 for court’s vacation, the Applicant was therefore almost 6 months late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.In the Applicant’s case, a delay of almost 6 months must be considered as very substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the decision was sent on the same day of 20 July 2023 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.

14.As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forward any proper ground for her intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in her appeal before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in her intended application either.

15.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.

16.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.

17.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.

18.Moreover, the Applicant recently on 25 February 2025 filed an affirmation requesting to withdraw her application as she now wants to return to her home country but without providing any explanation as to what has happened to her claimed risk in the Philippines.

19.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 the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application.

Dated the 24^th 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 24 June 2025 Lumanog Christina Peromingan 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 24 June 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 21023 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 851/22 (Formerly RBCZ 5000713/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)