Case Document

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HCAL 1367/2024

[2026] HKCFI 5983

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1367 OF 2024

BETWEEN

	Nicolas Jannette Balingasa	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 37-year-old national of the Philippines who last arrived in Hong Kong on 29 August 2023 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 29 August 2025 or within 14 days of its early termination, but when her employment was prematurely terminated on 23 October 2023, she did not depart and instead overstayed, and was arrested by police some 2 months later on 9 January 2024. 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 former boyfriend for refusing to resume their relationship. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born in Antipolo Rizal, the Philippines and raised in Sibaguan, Sagnay, Camarines Sur, Bicol. After leaving school she worked in various jobs as a domestic helper, waitress and saleslady to make her living, and later cohabited with her boyfriend Roger in her home district.

3.In early 2009 she became pregnant with their son, but when she told him about her pregnancy, Roger was not happy and told her to get an abortion, and when she refused, he then left and ended their relationship.

4.After giving birth to her son in September 2009, the Applicant placed him in the care of her cousin in Sinawillan Digos City, Davao Del Sur, and went to work in Manila before coming to Hong Kong in 2017 to work as a foreign domestic helper to support her son.

5.In 2019 the Applicant suddenly received messages from Roger requesting to get back together to live as a family with their son, but when the Applicant refused, Roger became furious and made threats against her, whereupon she ceased all further contact with him.

6.However, Roger continued to send threatening messages to her friends against her, and so after her last employment was prematurely terminated in October 2023, the Applicant was afraid to return to the Philippines and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police in January 2024, she then raised her non‑refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 28 March 2024 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 3 May 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”).

8.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her former boyfriend Roger 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 Roger to seriously harm or kill her other than just angry words and empty threats, that in any event it was a private relationship 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”) shows 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 Davao City where it would be difficult if not impossible for Roger to locate her.

9.On 13 May 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 29 July 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 9 August 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her former boyfriend Roger over their private disputes that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim upon first overstaying in Hong Kong until more than 2 months later and only after her arrest by the police, that even if her account of events were true that there was no reliable evidence of any real intention of Roger to seriously harm or kill her other than just angry words or empty threats, and that in any event it was a private 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 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 Roger that her claim for non-refoulement protection failed on all applicable grounds.

11.On 19 August 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 in which she just asserted that her life is still in danger in her home country but without putting forth any proper ground for her intended challenge. 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.

12.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 her 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.

13.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.

14.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 even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts 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.

15.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.

16.Moreover, the Applicant has recently on 29 September 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.

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, 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 29^th day of October 2026

(Joyce Ooi)
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 to the Applicant on 29 October 2026 Nicolas Jannette Balingasa 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 29 October 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 23634 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 677/24 (formerly RBCZ 5000685/24) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)