Raquel Lia Gilhang v. Torture Claims Appeal Board

HCAL 1379/2025

[2025] HKCFI 3844

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1379 OF 2025

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 6 June 2019 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 28 October 2012 as a visitor with permission to remain as such up to 18 November 2012 when she did not depart and instead overstayed, and was arrested by police on 11 March 2013. After she was referred to the Immigration Department for investigation, 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 former boyfriend for leaving him and ended their relationship against his wish. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Cavite City, the Philippines. While in college in 2003 she met and formed a relationship with her boyfriend, and soon they started to cohabit together.

3.However, by 2009 their relationship started to deteriorate due to various issues over her boyfriend’s excessive and aggressive demands for sex, his violent behavior towards her and his illegal drug habits which led to numerous arguments between them.

4.In late 2011, the Applicant decided to leave her boyfriend when she left for Singapore to seek jobs without informing him, and upon returning to the Philippines in January 2012 she did not return to her boyfriend’s home, and in April 2012 she travelled to Hong Kong as a visitor during which she met another Filipino man by the name of Miles with whom she soon formed a relationship.

5.Upon the expiration of her visiting visa, the Applicant departed Hong Kong to return to the Philippines, during which she did not meet her former boyfriend again but was informed by her friends that he had been serving a prison term for drugs offence but had expressed anger towards her for leaving him that he threatened to kill her if he saw her again.

6.For the next 6 months the Applicant kept returning to Hong Kong on a tourist visa to stay with Miles, and during her last visit in October 2012 she discovered that she was pregnant with their child, and as she was afraid of being harmed by her former boyfriend in the Philippines, she 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 21 April 2017 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interview before an immigration officer due to alleged medical reason.

7.By a Notice of Decision dated 26 May 2017, 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”).

8.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 she would be in danger of being harmed or killed by her former boyfriend upon her return to the Philippines due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her former boyfriend to seriously harm or kill her other than some angry words and empty threats and her own speculations, that after all these years since she left him in 2011 that it is not accepted that he would still have any adverse interest in her, 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 100 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 her former boyfriend to locate her.

9.On 16 June 2017, 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 oral hearing on 24 May 2018 before the Board without any explanation and with no response to the Board’s subsequent enquiry for her non-attendance that the Board proceeded to deal with her appeal in her absence and on papers based on the materials and information provided by her earlier to the Director and available in the hearing bundle before the Board. On 6 June 2019, her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision[1], the Board accepted the Applicant’s claim of fear of harm from her former boyfriend for leaving him and ended their relationship but found no reliable evidence of any real intention of him to seriously harm or kill her or any reason to expect him to still have any adverse interest in her after all these years since she left him in 2011, 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 her former boyfriend that her claim for non-refoulement protection failed on all applicable grounds.

11.On 16 June 2025, the Applicant filed his 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 repeated her claim as before and that she has now formed a family with Miles and with their child in Hong Kong that she does not want to return to the Philippines where she no longer has any family, nor did she request any oral hearing for her application.

12.By then the Applicant was also seriously 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.

13.As the last day of the three-month period for her to file her Form 86 fell on 9 September 2019, the Applicant was therefore some 5 years and 9 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.

14.In the Applicant’s case, a delay of 5 years and 9 months must be considered as extremely 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 6 June 2019 to her the reported address without being returned through undelivered post. As such I am unable to see any good or valid reason for her such serious delay.

15.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 process 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.

16.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.

17.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 even 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.

18.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.

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 such serious delay, I refuse to extend time and accordingly dismiss her application.

Dated the 9^th day of September 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