Case Document

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HCAL 941/2023

[2026] HKCFI 5007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 941 OF 2023

BETWEEN

	Kewengan Sabina Rufino	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 in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, 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 15 June 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 2 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/HCAL000941_2023_files/the_Board's_Decision.pdf

2.The Board rejected the applicant’s claim for non-refoulement protection as not substantiated on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 17 October 2022, which rejected the applicant’s non-refoulement claim.

Amendment

3.In Form 86, the applicant named the Board as both the putative respondent and the putative interested party.

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

5.This court therefore makes an order on its own motion to amend 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 loan shark due to her inability to repay the loan obtained jointly by her and her cousin W, but the applicant was solely responsible to repay.

8.The applicant also claimed to fear being harmed or killed by her husband, who accused her of having an affair in Hong Kong and who was further agitated when the loan shark asked him to repay the loan for the applicant.

9.Although the applicant did not have a boyfriend in Hong Kong when her husband accused her of having an affair in 2011, the applicant did have a relationship with a Filipino man from October 2014. The relationship ended when her boyfriend returned to the Philippines. The applicant feared that she had committed the offence of adultery and would be imprisoned if she was convicted in the Philippines.

Oral hearing

10.The applicant requested for an oral hearing and her case was heard on 27 August 2026.

11.When this court asked the applicant for the grounds of her intended judicial review, the applicant merely told this court that she still did not want to go home.

12.When this court asked her what was wrong with the Board’s Decision, she only said that she did not know.

Grounds for judicial review

13.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).

14.In Form 86 and her supporting affidavit dated 15 June 2023, the applicant only stated that she was against the Board’s Decision.

15.As aforesaid, at the oral hearing, the applicant merely said that she still did not want to go home and she did not know what was wrong with the Board’s Decision.

Discussion

16.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).

17.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

18.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 17 May 2023 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.

19.As can be seen from the Board’s Decision, the Board had duly considered all aspects of the applicant’s claims, namely her risk of serious harm and/or death at the hands of the loan shark and her husband, as well as her fear of being imprisoned for adultery.

20.The Board had laid out its findings and assessment of the applicant’s claims in paragraphs 24 to 38 of the Board’s Decision, and it is not necessary to repeat the same here.

21.In gist, in relation to the risk of harm from the loan shark, the Board found that the applicant’s cousin W, who jointly took out the loan with her, was never harmed by the loan shark. Although W told her that the loan shark had approached her family for repayment, there was no evidence that her family was ever harmed by the loan shark. The Board found that the loan shark had done nothing more than making verbal threats in attempts to coerce repayment of the loan. Together with the erosion of motivation to harm the applicant on the part of the loan shark with the passage of time, the Board considered that there was only a remote or speculative risk, and therefore not a real risk, that the applicant would face any of the proscribed harm from the loan shark if she was refouled to the Philippines.

22.With regards to the applicant’s fear of prosecution due to adultery, the Board found that the Philippine authorities could only convict her of adultery if she committed adultery within the Philippines. The applicant’s relationship in Hong Kong would not constitute a criminal offence in the Philippines. The Board considered that there was no real risk of the applicant facing prosecution or conviction of any charge of adultery by the Philippine authorities if she returned to her country.

23.As to the applicant’s fear of her husband, the Board found that even if it gave the benefit of the doubt to the applicant to the extent that her husband was violent to her in the past, it seemed to the Board, more likely than not, that their marriage was over. The Board rejected that the applicant’s husband knew of her relationship with the Filipino man in Hong Kong, and considered this aspect of the applicant’s claim as something invented at the Board’s hearing in an attempt to exaggerate the risk of her husband harming her. Due to the passage of time and the long period the applicant had had no contact with her husband, as well as being mindful that the applicant’s children were adults, the Board considered that there was only a remote or speculative risk, and therefore not a real risk, that the applicant would face any of the proscribed forms of harm from her husband upon refoulement.

24.Moreover, the Board had laid out its reasons in paragraphs 40 to 42 of the Board’s Decision for the conclusion that it was reasonable and not unduly harsh for the applicant to access internal relocation to Davao to reduce any risks she faced from the loan shark and her husband.

25.Thus, the Board was satisfied that the applicant was not at a real risk of any of the proscribed forms of harm upon her return to the Philippines.

26.Although the Board did not consider state protection, it was unnecessary to make findings on the availability of state protection as the Board found that the applicant was not at a real risk of any of the proscribed forms of harm upon refoulement.

27.The finding of facts, including the assessment of evidence and risk of harm, was primarily within the realm of the Board in dealing with her appeal/petition. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

28.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.

29.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

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

Dated the 2^nd day of September 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:02/09/2026 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: 02/09/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 21113 Director of Immigration Putative interested party’s ref. no.: QA T/C 930/22 (formerly RBCZ 5000791/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)