Case Document

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HCAL 1219/2021

[2026] HKCFI 5000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1219 OF 2021

BETWEEN

	Viado Jhusan Donato	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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 42-year-old national of the Philippines who last arrived in Hong Kong on 14 October 2016 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 3 November 2019, she did not depart and instead overstayed, and was arrested by police more than 1 year later on 9 December 2020. 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 creditor for failing to repay her debts and/or by her husband over her affair with another man in Hong Kong. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Abra, the Philippines. After leaving school she worked as a saleslady to make her living, later married her husband Valentine and made their home in the same district.

3.In 2013, she came to Hong Kong to work as a foreign domestic helper until August 2016 when she returned to the Philippines after completing her employment contract.

4.Later in the same year of 2016, she again applied to work in Hong Kong as a domestic helper, and to meet her agency fees and expenses, she borrowed a loan from some local money-lender to be repaid by monthly instalments from her salary to be earned in Hong Kong.

5.Accordingly on 14 October 2016, she returned to Hong Kong to resume working as a foreign domestic helper, during which she met and formed a relationship with an Indian man and with whom they subsequently resided together, but which was subsequently discovered by her husband Valentine in the Philippines who then became furious and sent messages to her threatening to kill her when she returned to the Philippines, whereupon she ceased all further contact with him.

6.By September 2018, she also stopped repaying her loan whereupon her creditor then made threatening phone calls to her and also sent men to her home in the Philippines making threats to kill her upon her return to the Philippines.

7.As a result, the Applicant became fearful for her life due to the threats from her creditor and her husband, and so after her last employment was prematurely terminated on 3 November 2019, she was afraid to return to the Philippines and 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 17 March 2021 and attended screening interview before the Immigration Department with legal representation.

8.By a Notice of Decision dated 16 April 2021, 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”).

9.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 creditor or her husband upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, while those from her husband were just angry words and empty threats, that in any event these were private monetary or domestic disputes between her and her creditor and husband 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 110 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 or Davao where it would be difficult if not impossible for her creditor or her husband to locate her.

10.On 30 April 2021 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 12 August 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 25 August 2021 her appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision[1], the Board accepted the Applicant’s claim of threats from her creditor and her husband evidence that it doubted the credibility of his claim of fear of harm from that caused him to overstay in Hong Kong to seek protection, that there was no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, while those from her husband were just angry words and empty threats, and that in any event these were private monetary and marital disputes between them without any official involvement that state or police protection would be available to the Applicant upon her return to the Philippines if resorted to 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 creditor or her husband that her claim for non-refoulement protection failed on all applicable grounds.

12.On 31 August 2021, 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 other than a regurgitation of her claim as before but without putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of her application. As such, 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 reasonably arguable basis for her intended challenge of the Board’s decision.

13.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.

14.In the Applicant’s case, the Board rejected her claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law 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 reasonably arguable basis to challenge the finding of the Board.

15.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim if real are localized ones 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.

16.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.

17.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, I refuse to grant leave and accordingly dismiss her application.

Dated the 3^rd day of September 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 3 September 2026 Viado Jhusan Donato 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 3 September 2026 Torture Claims Appeal Board Putative Respondent’s ref no: USM 17885/21/4/88/F1261 Director of Immigration Putative Interested Party’s ref no: QA T/C 137/21 (Formerly RBCZ 90/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)