ROXAS NAFIZA MAE BALUTOC AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 2063/2019

[2025] HKCFI 5151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2063 OF 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

1.  Leave for the 1^st Applicant to apply for judicial review be refused;

2.  Leave for the 2^nd Applicant to apply for Judicial Review be granted;

3.  The 1^st Applicant, for the 2^nd Applicant as his next friend, do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A);

4.  The 1^st Applicant, for the 2^nd Applicant as his next friend, do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

5.  Costs be in the cause; and

6.  The 2^nd Applicants’ own costs be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 37-year-old national of the Philippines who last arrived in Hong Kong on 22 December 2015 with permission to continue to work as a  foreign domestic helper until the expiration of her employment contract on 11 February 2017 or within 14 days of its early termination, but when her employment was prematurely terminated on 13 January 2017, she did not depart and subsequently overstayed in Hong Kong, and on 11 January 2018 she surrendered to the Immigration Department and 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 and/or some gangsters associated with him due to their various disputes, and upon subsequently giving birth to her son, the 2^nd Applicant (“A2”) on 13 July 2018 out of her relationship with an Indian man in Hong Kong, she also raised a non-refoulement claim for her son on the same basis. They have both been released on recognizance pending the determination of their claim.

2.  A1 was born and raised in Liwan West Rizal Province Kalinga, the Philippines. While in college she formed a relationship with her then boyfriend Axe and cohabited with him in the college’s boarding house in Cagayan Valley.

3.  Soon A1 discovered that Axe had indulged in alcohol and illegal drugs, and when drunk he would abuse her by slapping and pushing her around, and in 2014 she was appalled to find him also involved with some local gangsters and a retired police officer in illegal trading of firearms, and desirous to leave him A1 therefore applied to work in Hong Kong as a foreign domestic helper, which she did on 11 February 2015 when she first arrived in Hong Kong to start her employment.

4.  Whilst working in Hong Kong A1 was informed by her mother in the Philippines that those local gangsters had come looking for her and Axe who had disappeared after his dispute with those gangsters over the money from his sale of the firearms which Axe told them had been used for A1’s travelling expenses for coming to Hong Kong, and so those gangsters demanded that A1 should return the money to them or else they would find and kill her, and hence her mother warned her not to return to the Philippines.      

5.  Later in 2016, A1 met and formed a relationship with an Indian man in Hong Kong, and after her employment was prematurely terminated on 13 January 2017 A1 was afraid to return to the Philippines and therefore overstayed in Hong Kong, and subsequently surrendered to the Immigration Department and raised her claim for non-refoulement protection for both herself and her son, and for which she completed a Non-refoulement Claim Form (“NCF”) on 5 December 2018 jointly for both of them and also attended screening interview before an immigration officer with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 27 December 2018, the Director of Immigration (“Director”) rejected the claims of both Applicants on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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”).

7.  In his decision, the Director took into account of all the relevant circumstances of the claim of each of the Applicants and found no substantial grounds for believing that A1 and her son would be in danger of being harmed or killed by Axe or his gang upon their return to the Philippines due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of any of them to seriously harm or kill either of them other than A1’s own speculations, that in any event these were private disputes between 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”) show that support and assistance from various governmental departments and NGOs will be available to them as Filipino citizens as well as reasonable internal relocation alternatives in the Philippines with a large population of 104 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with A2 to other areas of the country away from her home district in large cities such as Manila where it would be difficult if not impossible for anyone to locate them.

8.  On 11 January 2019, A1 lodged an appeal for herself and A2 to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 1 April 2019 without legal representation before the Board during which A1 gave evidence and answered questions raised of their claims by the Adjudicator for the Board.  On 15 July 2019 their appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision, the Board accepted that A1 was in an abusive relationship with Axe in the Philippines but sustained no major injuries and had not maintained any contact with him since 2015 or received any threats from those gangsters associated with him, and henceforth found that she had failed to establish any well-founded fear that she and A2 will be subjected to any harm from Axe or those gangsters associated with him if they were refouled to the Philippines, and that in any event in the absence of any official involvement that state or police protection would be available to them as well as reasonable internal relocation alternatives for A1 to move safely with A2 to other parts of the country away from her home district without any risk of being located by anyone that their claims for non-refoulement protection failed on all applicable grounds.    

10.  On 19 July 2019, A1 filed a Form 86 for herself and A2 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in the Form, and in her supporting affirmation of the same date she just stated that she rejects the decision as it disregarded their dangerous situation but without any relevant or necessary details or particulars or elaboration as to how it did so, and subsequently upon Legal Aid being granted to her to sue as next friend for A2, a single ground is put forward for A2’s intended challenge in the amended Form 86, and as summarized by his counsel Ms Ferrida Chan in the written submissions as follows:

“That the Board has failed to give separate consideration to the personal circumstances of A2 and to consider whether there exist matters that may provide potential minor-specific bases for his claim which have not been properly advanced before the Board due to the absence of legal representation, as held to be necessary by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq. Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971.”

11.  The proper approach for the determination of a minor’s non-refoulement claim laid down by the Court of Appeal in Fabio Arlyn Timogan, and as elaborated by the same Court in Re Jasvir Singh [2021] HKCA 53 as follows:

“30. First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf. In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:

(1)   Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant;

(2)   Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

(3)   Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.

See: Fabio Arlyn Timogan, [34] – [35].

31. Second, when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions. In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] – [54].

32. If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC. Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board. See: Fabio Arlyn Timogan at [50] – [53], [56] – [57].

33. Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions, and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”

12.  In applying these propositions in the present case as regard A2’s claim, Ms Chan submits that the Board failed to address A2’s position separately or at all, notwithstanding the fact that A1 did mention her fear that A2 would face discrimination for being born out of wedlock and is of mixed race if refouled to the Philippines, as recorded in paragraph 57(A)(i) of the Board’s decision, of which Ms Chan argues is clearly premised separately from his mother’s claim, but nowhere in the decision did the Board give any consideration of or address such claim at all or separately, and that it is clear that the Board just rejected A2’s claim simply because it rejected A1’s claim.

13.  Ms Chan further submits that A2 being just less than 9 months old at the time of his appeal hearing that the Board should have been alert to the possibility that he may have separate interests or could face specific risks due to his illegitimacy and of mixed race, particularly in light of the absence of legal representation for him.

14.  On the basis of those findings and determination of the Board as stated in its decision ([56] – [64]) and as noted above, I agree that it seems reasonably arguable that the Board had failed to consider A2’s non-refoulement claim separately or at all in a manner consistent with the propositions set out in Fabio Arlyn Timogan and Re Jasvir Singh, and in particularly for grounds specific to A2’s personal circumstances of being an illegitimate child of mixed race born and raised in Hong Kong and has never been to the Philippines, or for that matter to make proper enquiry as to his nationality and whether he could relocate to the Philippines with his mother in its assessment that internal relocation alternatives would be available to both of them: See Dian Lestari & Anor v Torture Claims Appeal Board, CACV 192/2024 [2025] HKCA 39 at para 21.

15.  As for A1’s application for leave to apply for judicial review as regard her own non-refoulement claim, as noted above that she has failed to put forward any proper ground for her intended challenge, and given in my view the correct findings of the Board that her claimed risks of harm from her former boyfriend Axe or his associated gangsters even if true are localized ones of private disputes without any official involvement that both state protection and reasonable internal relocation alternatives would be available to her upon her return to the Philippines to negate such risks, I do not find any reasonably arguable basis for her intended challenge of the Board’s decision as regard her own claim, and therefore refuse her leave application.             

16.  In the premises, and as I am for the given reasons of the view that A2’s intended application for judicial review of the Board’s decision is reasonably arguable on the proposed ground as stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, I therefore grant leave to A1 to apply as next friend for A2 for judicial review of the Board’s decision on the ground stated above, and direct that she shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party, with costs to be in the cause and A2’s own costs to be taxed on Legal Aid Regulations.

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