Case Document

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HCAL 2503/2024

[2026] HKCFI 4468

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2503 OF 2024

BETWEEN

	Villavicencio Cherry Soleta	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 49-year-old national of the Philippines who last arrived in Hong Kong on 13 September 2023 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 15 June 2025 or within 14 days of its early termination, but on 6 November 2023 she was arrested by police for undertaking unauthorized employment and was subsequently convicted and sentenced to prison for 2 months, during which she raised a non-refoulement claim to the Immigration Department for protection on the basis that if she returned to the Philippines she would be harmed or killed by her husband over their marital disputes.

2.The Applicant was born and raised in Balagtas, Bulacan, the Philippines. After leaving school she married her husband and raised a family with 3 children in her home district.

3.However, her marriage did not fare well as her husband was a drunk and a gambler with a violent temper that whenever he lost his temper that he would beat the Applicant violently, thereby causing her suffering and distress.

4.In 2016 the Applicant could no longer tolerate living with her husband and therefore left him to return to her parents’ home, but thereafter her husband refused to allow her to visit their children and threatened to kill her if he saw her coming near his place again.

5.As a result the Applicant feared for her own safety, and in order to make her living she therefore came to Hong Kong later in 2016 to work as a foreign domestic helper, but in November 2023 when she was arrested for undertaking unauthorized employment in breach of her conditions of stay, she was afraid to return to the Philippines and therefore raised her non-refoulement claim for protection, for which she completed a Non‑refoulement Claim Form (“NCF”) on 15 January 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 31 January 2024 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 husband over their marital dispute 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 her husband to seriously harm or kill her other than just angry words and empty threats, that in any event it was a private marital 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 116 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 Cebu or Davao City where it would be difficult if not impossible for her husband to locate her.

8.On 7 February 2024 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 15 April 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 23 April 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision[1] the Board accepted the Applicant’s claim of marital disputes with her husband that led to their separation but found no reliable evidence of any real intention of her husband to seriously harm or kill her other than just angry words and empty threats, and that in any event it was a private marital 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 husband that her claim for non‑refoulement protection failed on all applicable grounds.

10.On 17 December 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 to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge.

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 23 July 2024, the Applicant was therefore more than 3 months late with her application after discounting the month of August 2024 for the court’s vacation, 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 more than 3 months must be considered as very substantial and inordinate, for which she just made a bare assertion in her Form that she never received the decision in the mail but without any reliable evidence to corroborate her bald assertion, and as the record shows that the decision was sent on the same day of 23 April 2024 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 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.

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.In the premises, and 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 has recently on 29 June 2026 in writing requested to withdraw her application as her issues in her home country have been resolved that she now wants to return to the Philippines as soon as possible.

19.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 of no more issue for her to return to her home country, I accordingly dismiss her leave application.

Dated the 14^th day of August 2026

(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 14 August 2026 Villavicencio Cherry Soleta 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 14 August 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 22979 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 53/24 (Formerlyl RBCZ 5001971/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)