Case Document

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HCAL 1157/2023

[2026] HKCFI 4705

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1157 OF 2023

BETWEEN

	Bobis Pauline Gonzaga	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 (Order 53, rule 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the applicant or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the name of the putative interested party be amended to “Director of Immigration”.

2. The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 11 July 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 29 June 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001157_2023_files/the_Board's_Decision.pdf

2.The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 29 September 2022 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.In Form 86, the applicant named the Board and the Director as the putative respondents, and the Board as the putative interested party.

4.In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

5.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

6.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, she would be harmed or killed by a male neighbour, Trifon Roberta De Jose (“Trifon”), and his son, Berto Roberta, due to her family’s filing of a sexual harassment case against him for molesting the applicant’s daughter Yulo Paula Marie in November 2019.

Disposal on paper

8.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

9.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

10.The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affidavit dated 11 July 2023.

Discussion

11.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

12.Thus, despite the fact that the applicant failed to advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

13.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 23 June 2023. The applicant was present and was thus given the chance to present her case to the Board in person.

14.As can be seen from the Board’s Decision, the Board analysed the applicant’s claim in detail, and gave full and detailed reasoning in rejecting the applicant’s claims. Its assessment on the applicant’s claims and evidence were laid out in paragraphs 42 to 53 of the Board’s Decision, and it is not necessary to repeat the same here.

15.In gist, the Board accepted that the applicant’s daughter was sexually assaulted in 2019 by Trifon, and that Trifon’s son and daughter contacted the applicant in November 2019 to ask her to withdraw the case and that might have involved some threats of harm soon after the police took action against Trifon and he was jailed and released on bail. However, the Board did not accept that there were ongoing threats of harm from Trifon or his family, and that the applicant genuinely feared harm in the Philippines.

16.The Board considered that the applicant was attempting to rely on the very unfortunate assault of her daughter as a means of remaining in Hong Kong. The Board gave detailed reasons for this conclusion, including the applicant’s delay in applying for non-refoulement protection after her employment as foreign domestic helper was terminated. The applicant’s allegation that Trifon’s family was focused on pursuing her was considered by the Board as unpersuasive and indicative of her attempts to establish that she would be pursued upon her return to her country, even though her family continued to live next door to Trifon without any harm. It was actually the applicant’s sister Robilyn who reported the sexual harassment case to the police, and the applicant’s brothers who beat Trifon. The Board found it not credible that she would be solely blamed, pursued and harmed, when her other family members could safely live next door while a court case against Trifon was ongoing. The Board also refused to accept the applicant’s new evidence at the Board’s hearing that she kicked Trifon in November 2019 when she returned to the Philippines.

17.The applicant claimed that Trifon continued not to attend court regarding the criminal charge against him, but the Board did not accept that no action was taken against Trifon, if he had failed to attend the scheduled hearing dates. The Board considered it likely that the applicant had not been truthful about her knowledge of the status of the court proceedings.

18.Moreover, the Board found that the Trifon family had never inflicted any harm on the applicant and her family, that they, at most, only issued some threats which were not acted upon, and that they ceased issuing threats after the applicant’s family reported them to the Barangay.

19.More importantly, the Board considered that if the applicant did not wish to live next door to Trifon because of her distress and any continuing anger due to the assault against her daughter, it would be both reasonable and not unduly harsh for her to relocate to another area of the Philippines. The Board’s reasons for such a finding were laid out in paragraph 52 of the Board’s Decision. The Board was not satisfied that there was any evidence that Trifon or his family would pursue her to another part of the country.

20.Thus, the Board was not satisfied that there were substantial grounds or a real chance that Trifon or his family would inflict harm amounting to torture, a risk to the applicant’s life, CIDTP[1] or persecution upon the applicant if she returned to the Philippines. The Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

21.The finding of facts relating to a non-refoulement claim, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

22.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

23.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

24.For reasons aforesaid, the Leave Application is dismissed.

Dated the 19^th day of August 2026

( Gladys LEE )
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 his 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/Handed to the applicant/the applicant’s solicitors on: 19/08/2026 Applicant’s ref. no: Nil		Sent/Handed 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: 19/08/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 21047 Director of Immigration Putative interested party’s ref. no.: QA T/C 843/22 (formerly RBCZ/5000725/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)