Gamayao Rea Magbanua v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 644/2025

[2025] HKCFI 2886

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 644 OF 2025

_____________

BETWEEN

_____________

_______________

J U D G M E N T

_______________

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 13 July 2023 of the Torture Claims Appeal Board (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 13 October 2023. Her application was filed on 13 March 2025, which is late for 1 year and 5 months. This issue will be dealt with below.

2.The applicant requested an oral hearing. She appeared before the Court on 30 May 2025.

The applicant

3.The applicant is a national of the Philippines. The applicant last arrived in Hong Kong as a domestic helper since 2017. When her contract was prematurely terminated, she did not depart and overstayed in Hong Kong since 20 August 2022. In due course, she lodged a non-refoulement claim.

4.The applicant’s claim was based on her fear of being harmed or killed by her family because she was a Lesbian.

5.According to the applicant, the applicant stated that her family could not accept her because she was a Lesbian [16]. She stated that she had endured childhood abuse and panic attacks while also being threatened from her father. Details of her claim are set out at paragraphs 10 to 42 of the Board’s Decision.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

(a) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(b) risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(c) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(d) risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.The Director rejected her claim for the reason that it was not substantiated.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 8 May 2023, the Board conducted an oral hearing for her appeal, during which the Board asked the applicant various questions regarding her claim. [43-82] [hyperlink of the Board’s Decision, if available]

9.The Board had made an extensive enquiry into the facts of the applicant’s case. [43]-[82] Having considered the evidence, the Board had made the finding of the facts below.

(1) It accepts that the applicant has been a lesbian since her early teen. [75]

(2) In this regard, she only fears her father’s reaction to it, not the society at large as she had managed to live openly in same-sex relationships in the Philippines for many years without ever being harmed. [76]

(3) She may relocate internally in the Philippines. [77]-[[78]

(4) State protection will be available. [79]

(5) On the totality of the evidence, the Board did not accept that the applicant had ever feared from her father for the reasons she stated and the fear of her father forcing her to marry a man is very remote. In a nutshell, the Board did not accept her father caused any fear to her. [81]-[82]

10.It therefore dismissed her appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 13 March 2025 for leave to apply for judicial review of the Board’s Decision.

12.In the applicant’s affidavit in support of her application, the applicant exhibited the Board’s Decision and deposed that she needs help to stay in Hong Kong as her life is in danger. Nor did she explain her late application.

DISCUSSION

13.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board was not wrong in its decisions.

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.Although the Board accepted that the applicant is a lesbian, it had taken other considerations such as her fear about her father, state protection, social pressure on her, and internal relocation. As the Court of Appeal in in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, Hon. Cheung CJHC, Stock VP and Fok JA (as they then were), 21 November 2012, held:

“32. Fourthly, the question of internal relocation (otherwise known as “internal flight”). This is a concept common to refugee law and torture claims. The rationale is simple: if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT.”

18.The applicant has failed to raise any valid ground to challenge the Board’s Decision. In my view, the Board’s Decision is reasonable and the Court has no reason to interfere with it.

19.The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

20.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

The applicant appeared in person.