CASTILLOTE JOVELYN SORIANO AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2374/2019

[2025] HKCFI 1267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2374 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  On the Court’s own motion, leave is granted and the 2^nd applicant is joined as a party in Form 86.

2.  The 1^st applicant, aged 45, is a national of the Philippines and the mother and the guardian ad litem of the 2^nd applicant, her daughter, aged 11.

3.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 9 August 2019 of the Torture Claims Appeal Board (“the Board’s 2^nd Decision”) on their BOR 2 risk. There is another Decision dated 23 February 2017 of the Board dismissing the applicants’ appeal against the Director’s 1^st Decision on torture risk, BOR 3 risk and Persecution risk (“the Board’s 1^st Decision”). The 2^nd applicant’s claim relies upon the 1^st applicant’s facts.

4.  The applicants had not applied for leave for judicial review of the Board’s 2^nd Decision. Since the facts of the Board’s 2^nd Decision are the same facts in support of the Board’s 1^st Decision, this Court will take into consideration of the Board’s 1^st Decision as well.

5.  The applicants requested a hearing. However, they were absent at the hearing on 17 March 2025. I shall deal with their joint application on the papers.

6.  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

7.  The applicants are national of the Philippines. The 1^st applicant was arrested by the immigration officer on 25 October 2012. She admitted that she had made false declaration in support of her application for entering Hong Kong as a domestic helper, for which she was convicted and sentenced to 5 months’ imprisonment. On 11 August 2014, she gave birth to her daughter in Hong Kong. She lodged a non-refoulement claim for herself and her daughter on the basis that, if refouled, they will be harmed or killed by Edgar, her cohabitee in the Philippines.

8.  According to the 1^st applicant, she cohabited with Edgar since 1999 and she gave birth to 3 sons. In around 2005, Edgar became abusive to her with violence by strangling her neck from time to time. She did not report the incidents to police because she still loved him. Nor did she obtain medical treatment from hospital. In July 2011, she moved away and lived in her aunt’s premises. She has since never seen Edgar again. Details of her story can be found in paragraph 6 of the Notice of Decision dated 10 November 2015 (“the Director’s 1^st Decision”).

The Director’s Decision

9.  The Director considered the applicants’ claims 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”).

10.  By way of the Director’s 1^st Decision, the Director assessed their claims jointly and dismissed their claims on torture risk, BOR 3 risk and Prosecution risk for the reasons that from the 1^st applicant’s experience in the Philippines, her alleged harm is not real or imminent; that state protection will be available; and that internal relocation is viable. [16]-[18]

11.  By way of the Director’s Further Notice of Decision dated 12 May 2017(“the Director’s 2^nd Decision”), the Director rejected the applicants’ claim on BOR 2 risk as they failed to establish a personal and real risk of their absolute right to life under BOR 2 upon their return to the Philippines.

The Board’s Decision

12.  The applicants appealed the Director’s 1^st Decision to the Board. On 1 February 2016, the Board conducted an oral hearing for them.

13.  Having considered the evidence, the Board found that the 1^st applicant had failed to establish that she had a valid claim to non‑refoulement protection in Hong Kong on any of the grounds provided under the USM, including torture risk, BOR 3 risk and Persecution risk. It dismissed the applicants’ appeal and confirmed the Director’s 1^st Decision. [49]

14.  The applicants also appealed the Director’s 2^nd Decision to the Board. The Board decided not to hold a hearing for this appeal. Having considered the relevant evidence, the Board dismissed their appeal as it found:

“19. It is clear on all the evidence that neither 1^st nor 2^nd Petitioners have at any time at risk of their right to life under BOR 2 being violated, and there is no reason on all the evidence to believe that they would be at any risk if they were henceforth refouled to the Philippines.

20. 1^st Petitioner has stated that if she and 2^nd Petitioner are refouled to the Philippines they could go and live with her father and her 3 sons in Binangonan city, Rizal Province, where she believes that she would be safe from Edgar, and where she might well be able to find employment.

21. On all the evidence, for the reasons give above, 1^st and 2^nd Petiioner’s joint petition against the NOFD of the Director is dismissed.”

Application for leave to apply for judicial review

15.  The applicants filed Form 86 on 16 August 2019 for leave to apply for judicial review of the Board’s 2^nd Decision.

16.  In the 1^st applicant’s affirmation in support of her application, the 1^st applicant has raised the grounds of procedural impropriety/irrationality, error/misdirection in law, no sufficient basis to conclude that her family members would not be at risk of being subjected to torture; and the Board was too focused on her claim being a family dispute.

DISCUSSION

17.  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).

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

19.  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.

20.  In view of the Board’s finding of the facts under paragraph 14, which the 1^st applicant did not dispute, it is clear that child specific issues in Fabio’s case do not apply to this case. The grounds as raised under 16 are not relevant for consideration.

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

DISPOSITION

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

23.  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.