Fabrigas Laarni Marqueno v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1058/2023 [2026] HKCFI 4738 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1058 of 2023 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge To: Leave to apply for Judicial Review be refused. Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 30 June 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 23 June 2023 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 6 October 2022 (the “Notice”), refusing her application for non-refoulement protection. Background 2.The Applicant is a Filipino national. She last entered Hong Kong on 31 January 2019 to work as a foreign domestic helper. Her contract of employment was pre-maturely terminated and she overstayed since 15 December 2021. On 27 July 2022, she was arrested by the police for overstaying. She was convicted of the said offence and was sentenced to 6 weeks’ imprisonment suspended for 2 years on 30 July 2022. Then, she made a non-refoulement claim on 3 August 2022. 3.In due course, her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her application was rejected by the Director’s Notice. Her appeal was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of that Decision. However, she had returned to her home country before her leave application came to be processed. 4.The Applicant, now aged 37, was born Initao Misamis Oriental, the Philippines. She is single but has two children by two different partners, now former partners. Her parents, three siblings and two children are all living in the Philippines. She had received 10 years’ formal education and had 10 years’ working experience as a domestic helper in Saudi Arabia and Hong Kong. The factual background leading to the present application, the basis of her claim, the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. The hyperlink to the Board’s Decision is included below[5] for reference. In gist, she claims, if returned to Vietnam, she will be harmed or killed by her second former partner for having an affair in Hong Kong. She does not believe the Philippine authorities and police could protect her, as they are corrupt. She does not believe internal relocation would be viable because she has no the financial resources to relocate to another place. The finding of the Board 5.In her non-refoulement claim form (“NCF”), the Applicant claimed she had experienced two years of serious domestic violence at the hands of her second former partner. However, her testimony before the Board was that there had been verbal arguments only but no physical violence of any kind. The Board asked her twice to confirm if her account in her testimony before the Board was correct and she said it was. She was unable to account for the fundamentally inconsistent evidence in her NCF and her testimony before the Board. The Board had serious credibility concern on the Applicant. Nevertheless, it decided to overlook the credibility concerns and presumed for the Applicant’s benefit that her account in the NCF may be true. 6.According to the Applicant, she had no contact with her second former partner since 2014, notwithstanding that she had returned to the Philippines in 2019. Nevertheless, she insisted that she remained afraid of him. While accepting that she was genuinely in fear, the Board found on the basis of the evidence and the passage of time that the risk to the Applicant is below that of a real risk. 7.Furthermore, on the basis of authoritative and credible country of origin information that adequate state protection would be available to the Applicant in the Philippines. There is specific domestic legislation to curb and penalise violence against women. The Department of Justice has established a specific task force on the protection of women and children and will take forward these matters if required. There are women and children protection desks in nearly all police stations throughout the Philippines staffed by women police officers. There are shelters and residential care facilities for victims of domestic violence. There is also a specific organisation which campaigns and advocates for women in these situations. When the information was put to the Applicant, she could not provide any reason why she would not be able to access these services. In addition, given her age, education, working experience and socio-economic background, the Board found it would not be unduly harsh for her to relocate to other areas in the Philippines to avoid her former partner. 8.For all these reasons, the Board found the Applicant is not entitled to protection under all applicable grounds under the USM. Hence, it dismissed her appeal. Legal principles applicable to judicial review 9.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[6]. Grounds for judicial review 10.The Applicant did not advance any grounds for judicial review in the Form 86 or in her supporting affidavit. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. Conclusion 11.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. Despite finding the Applicant incredible, the Board assessed her claim on the basis of the case as she asserted. It was on that basis that the Board found the Applicant’s feared risk of ill-treatment is unreal. It also found reasonable state protection would be available and that she could relocate to other areas in the Philippines to avoid her former partner. Then, applying the law applicable to non-refoulement protection to the above finding of fact, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as these are finding of the law, they are absolutely correct. Insofar as these are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law of procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. For the above reasons, the Applicant’s leave application is refused. 12.The Court does not have the Applicant’s contact address in the Philippines. The Order and Form CALL-1 are therefore sent to the Director of Immigration with a request that the Department will use its best endeavor to forwarded them to the Applicant. Dated the 21st day of August 2026
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 [1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) [3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol [4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [5] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001058_2023_files/the_Board's_Decision.pdf [6] [2018] HKCA 524 at [14(1)] |
Cases cited in this judgment