NANAM RIZA LYN DIZO AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3222/2019

[2025] HKCFI 3999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3222 of 2019

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicants jointly apply for leave to apply for judicial review of the Decisions respectively dated 27 September 2018 and 27 May 2019 (“the Director’s Decisions”), which had been superseded by the Decision dated 30 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision”). Their joint application relies upon the facts of the 1^st applicant.

2.  The applicants did not request a hearing.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicants                                                                                     

4.  The 1^st applicant is the mother and the 2^nd applicant is her son.  The applicants are nationals of the Philippines.  The 1^st applicant last arrived in Hong Kong as a domestic helper since 11 December 2014 but when her contract was prematurely terminated, she did not depart and overstayed in Hong Kong since 8 February 2015. 

5.  The 2^nd applicant was born in Hong Kong on 26 October 2018. The applicants lodged their non-refoulement claim with the Immigration Department.

6.  The applicants’ claim was based on the 1^st applicant’s fear of being harmed or killed by (i) Lorna due to a money dispute; and (ii) Connie due to a private dispute.

7.  According to the 1^st applicant, a friend of hers called Lorna and her invested 900,000 each in a second-hand clothing business and Lorna believed that the 1^st applicant had embezzled money from the business. Lorna had sent people to the 1^st applicant’s house to demand return of money. Furthermore, the 1^st applicant believes that Connie, the girlfriend of the 2^nd applicant’s father, would also harm the 1^st applicant as she had texted that she hoped he would die.  Details of their claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003222_2019_files/the_Board's_Decision.pdf.

The Director’s Decisions

8.   The Director considered the applicants’ claims separately in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

9.  By way of the Director’s Decisions, the Director rejected the applicants’ respective claims because they were unsubstantiated. Beside, state protection and internal relocation will be available and viable to alleviate or neutralize their risks if they return to the Philippines.

The Board’s Decision

10.  The applicants appealed the Director’s Decisions to the Board.  On 28 February 2019 and 2 August 2019, the Board conducted an oral hearing for their appeals. Before the Board, the 1^st applicant had raised child specific for the 2^nd applicant that, if refouled, he would become an orphan and harmed or killed by his father’s girlfriend, Connie as she had said that she wanted him dead. [37]

11.  Having considered the evidence, the Board found that the 1^st applicant’s account lacking in detail, exaggerated, and inherently inconsistent or inconsistent with credible Country of Origin information [24].  In any event, the Board individually found that state protection was available [35, 37] and internal relocation was reasonable and not unduly harsh for the 1^st applicant and 2^nd applicant [35, 37].

12.  In relation to the 2^nd applicant, the Board found that the alleged risks to him is low. [37]

13.  It therefore dismissed their appeals and confirmed the Director’s Decisions. 

Application for leave to apply for judicial review

14.  The applicants have filed Form 86 on 29 October 2019 to apply for leave to apply judicial review of the Board’s Decision. The 1^st applicant did not raise any specific reason to challenge the Board’s Decision in support of their joint application.

DISCUSSION

15.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicants’ appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17.  It is apparent that the applicants were not legally represented before the Board. The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020 held that in such circumstances, the court should consider:

(1)   whether there were minors’ issues, which were not put before the  Board for the Board’s consideration because of lack of legal representation; and

(2)   whether the Board had separate consideration for the minors because they are more vulnerable to the risks than their parents, irrespective of whether the minors were legally represented. Begum Shufia & Others v Torture Claims Appeal Board [2024] HKCA 687 at [18] & Asif Muhammad & Others [2025] HKCA 630 at [18].

18.  Obviously, the Board had considered the child specific issues as raised by the 1^st applicant and found that those issues did not support the 2^nd applicant’s claim. This Court does not see any other child specific issue that was not brought to the Board’s consideration because of lack of legal representation for the 2^nd appellant.

19.  The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.

DISPOSITION

20.  I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

21.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 3^rd and the 4^th applicants’ application a nullity.

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