Perez Mailalinda Bulandres v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3123/2019

[2025] HKCFI 2621

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3123 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 17 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant requested an oral hearing. However, she was absent at the hearing on 20 May 2025. I shall deal with her application on the papers.

The applicant

3.The applicant, aged 48, is a national of the Philippines. She came to Hong Kong in March 2011 to work as a domestic helper. Her contract terminated prematurely on 6 February 2016. Then she came to Hong Kong as a visitor and she overstayed since 5 March 2016. She surrendered to the Immigration Department on 6 June 2016. She lodged a non-refoulement claim by a written submission on 25 July 2016 on the basis that, if refouled, she will be harmed or killed by her ex-boss, Mrs Mijares (“M”) or M’s husband, Mr Mijares, to prevent her from acting as witness against the misconducts of M.

4.According to the applicant, before she came to Hong Kong to work as a domestic helper, she worked as the local Civil Registrar Clerk from June 1997 to June 2004 under M. M had asked her to prepare forged documents to misappropriate public funds for her own use. In November 2000, M asked her to prepare false documents to support a fraudulent claim by M for 20,000 pesos. This time, she refused and M was very angry. M’s husband called her that if she gave a witness statement or acted as a witness, something bad would happen to her. She reported the matter to Attorney Jacinto V. Paras (“Attorney”). M was under investigation. Attorney asked her to be the prosecution witness in M’s trial. She left the Philippines fearing that M or her husband might do something bad to her.

5.Details of her story are set out in paragraph 6 of the Notice of Decision dated 20 February 2019 (“the Director’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.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that from her past experience, there was no evidence to show that she would have future harm as she alleged; that she will be protected by the law in the Philippines if she has to be a witness; and that internal relocation is viable. [10]-[19].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 29 May 2019, the Board conducted an oral hearing for her.   

9.Having considered the applicant’s evidence, the Board found that the real reason for her not to return to her country, as she admitted in the hearing, is that she is afraid that she will be prosecuted for assisting M to misappropriate the public funds. [54] The Board further found that she was not a truthful witness as the country of origin information showed that M was being prosecuted before she came to Hong Kong and she was not forced by Attorney to be a witness against M.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003123_2019_files/the_Board's_Decision.pdf.

10.For the above reasons, the Board dismissed her appeal.

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

11.The applicant has filed Form 86 dated 22 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.The applicant has raised no specific ground to challenge the Board’s Decision in her affidavit in support of her application.

DISCUSSION

13.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).

14.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.  

15.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.”

16.The applicant has raised no valid ground to challenge the Board’s Decision.

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

DISPOSITION

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

Dated the 14^th day of August 2025

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