MONTANA LIEZEL TRAWON AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2492/2019

[2025] HKCFI 1268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2492 OF 2019

_____________

_____________

_______________

J U D G M E N T

_______________

THE APPLICATION

1.  The 1^st applicant, aged 43, is the mother and the guardian ad litem of the 2^nd applicant, her daughter, aged 15.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 5 July 2019 of the Torture Claims Appeal Board (“the Board’s Decision”). Their joint application relies upon the facts of the 1^st applicant.

3.  The 1^st applicant had been duly advised to apply for legal representation. The applicants requested a hearing. However, they were absent at the hearing on 17 March 2025. I shall deal with their application of the papers.

4.  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

5.  The 1^st applicant is the mother of the 2^nd minor applicant. The applicants are nationals of the Philippines. The 1^st applicant last arrived in Hong Kong from Macau on 5 November 2009 but was later found entering Hong Kong under a false identity. On 4 December 2009, she was convicted of the offences of “using a false travel document”, “making a false representation to an Immigration Assistant”, and “making a false representation to an Immigration Officer” and was sentenced to a total of 15 months’ imprisonment. The 1^st applicant was discharged from prison on 1 October 2010.

6.  The 2^nd applicant was born in Hong Kong on 3 May 2010.

7.  The applicants had previously lodged torture claims, which were refused by the Director on 8 November 2012. Their appeal was dismissed on 17 December 2012. Subsequently, the 1^st and 2^nd applicants jointly lodged non-refoulement claims.

8.  The 1^st applicant’s claim was based on her fear of being harmed or killed by her ex-boyfriend, Jonathan, who is the father of the 2^nd applicant, or her ex-boyfriend’s wife and her family (“Ems”).

9.  According to the 1^st applicant, she and Jonathan came to Hong Kong, leaving Ems behind. In Hong Kong, they did not get along well and they quarreled from time to time. Jonathon had only use violence once by dragging her hair out of the bedroom when he was drunk. Ultimately, Jonathan left her behind and returned to the Philippines where he married Ems. She preferred to stay in Hong Kong. Details of her story are set out in paragraph 8 of the Notice of Decision dated 23 January 2018 (“the Director’s Decision”).

The Director’s Decision

10.  The applicant had made a torture claim, which was refused; and on appeal, her appeal was dismissed. The Director considered the applicants’ claims in relation to the following risks:

a.  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”);

b.  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

c.  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”).

11.  By way of the Director’s Decision, the Director assessed the 1^st and 2^nd applicant’s claims jointly and dismissed their claims. In summary, the Director found that: the absence or low intensity and frequency of past ill-treatment was indicative of a small future risk of harm [16]; both the 1^st and 2^nd applicants were safe in the Philippines prior to her departure for Macau [17]; the issue of Ems’s family was over eight years while she had left and would have dissipated after such a long lapse of time [18]; the threats by the 1^st applicant’s ex-boyfriend or by Ems’s family arose from a love dispute, which was private in nature [38]; state protection to both the 1^st and 2^nd applicants was available [19-22]; and internal relocation alternatives were available and reasonable [23-27].

The Board’s Decision

12.  The applicants appealed the Director’s Decision to the Board. On 22 January 2019, the Board conducted an oral hearing for their appeals, during which the 1^st applicant indicated she did not need an interpreter as she had 14 years of education including three years at university studying civil engineering. She further confirmed the truth of what she stated in the hearing bundle, forms, and interviews [13-14].

13.  Having considered the evidence, the Board found that the applicant was an impressive witness who gave her evidence fluently and frankly [73]. The Board considered that the 2^nd applicant daughter would face considerable adjustment going to live in the Philippines for the first time as she spent all her nine years in Hong Kong [78]. The Board accepted that it was possible that the 1^st applicant could face a risk of violence, but this could be reduced if she relocates away from Ems’s family and her ex-boyfriend [83]. The Board found that it would be reasonable for the applicants to internally relocate within the Philippines and in particular, with or near the 1^st applicant’s own family in Davao City where her mother, aunt and her five children, and four of her brothers and their families still live there [85]. In conclusion, the Board held the applicants’ claims failed under all applicable grounds. It therefore dismissed their appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

14.  The applicants filed Form 86 on 28 August 2019 for leave to apply for judicial review of the Board’s Decision.

15.  In the 1^st applicant’s affidavit in support of her application, the 1^st applicant deposed that she was “filing an appeal to the Director…” and also exhibited her Supplementary Claim Form dated 27 August 2019. No valid grounds or particulars were put forth.

DISCUSSION

16.  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).

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

18.  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, it is incumbent upon the Board to have separate consideration of the minor’s claim to see if there are any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation.

19.  The Board had considered the 2^nd applicant’s claim separately. See paragraphs 78 and 85 of the Board’s Decision.

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

DISPOSITION

21.  I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision.

22.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2^nd applicant’s application a nullity.