JON VIRGELITA SABIDO AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 899/2019

[2025] HKCFI 2159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 899 OF 2019

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 1st Applicant in open court;

Leave for the 1^st and 2^nd Applicants to apply for judicial review be refused.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 48-year-old national of the Philippines who last arrived in Hong Kong on 10 September 2007 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 10 September 2009 or within 14 days of its early termination, but when her employment was prematurely on 15 September 2008, she did not depart and instead overstayed, and on 20 January 2009 she surrendered to the Immigration Department and raised a torture claim on the basis that if she returned to the Philippines she would be harmed or killed by her father over her conversion of her religion from Christianity to Islam, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis, and upon giving birth to a son, the 2^nd Applicant (“A2”) on 1 June 2012, she also raised a non-refoulement claim for him to be jointly assessed with her claim. They were subsequently released on recognizance pending the determination of their claims.

2.  A1 was born and raised in a Catholic family in Tangway, Lipa City, Batangas, the Philippines. After leaving school she married her husband and raised a family with their son in her home district.

3.  In 1998 she started coming to Hong Kong to work as a foreign domestic helper to help support her family, but later in 2005 her husband left her for another woman, whereupon she brought her son back to her parents’ home to be taken care of by her parents while she continued to work in Hong Kong.

4.  In late 2005 she met and formed a relationship with a local Muslim man in Hong Kong, with whom she subsequently became pregnant with their daughter, and for which she converted her religion from Christianity to Islam, but when she later in 2008 informed her parents of the same, her father became furious and accused her for bringing dishonor to her family and her religion, and for which he threatened to kill her and her child if they returned to the Philippines, whereupon she ceased all further contact with her father, and so after her last employment was terminated in September 2008, she was afraid to return to the Philippines and therefore overstayed in Hong Kong, and in January 2009 she surrendered to the Immigration Department and raised her torture claim, for which she was released on recognizance pending the determination of her claim.

5.  In 2011 A1 met and formed another relationship with an Indian man and subsequently in 2012 she gave birth to their son A2, and after her torture claim was rejected, she then sought non-refoulement protection for both herself and A2, and for which she completed a Supplementary Claim Form (“SCF”) for herself and a Non-refoulement Claim Form (“NCF”) for A2, and jointly attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 12 December 2017 the Director of Immigration (“Director”) rejected the Applicants’ claims on all the applicable grounds (except torture risk for A1) 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 claims of both Applicants and assessed the level of risk of harm from A1’s father upon their return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from A1’s father, that there is no evidence of any real intention of A1’s father to seriously harm or kill A1 other than some angry words and empty threats uttered in just one telephone call in 2008 and that he was not even aware of the existence of A2 who was not yet born when A1’s father allegedly made the threats, that it is not accepted that after all these years that A1’s father would still have any adverse interest in either of them, that in any event it was a private dispute between A1 and her father without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that there are laws in the Philippines to protect unwed mothers and illegitimate children as well as supports and assistances from various governmental departments and NGOs available to them if so required, and that reasonable internal relocation alternatives are also available 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 safely 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 her father to locate them.

8.  On 22 December 2017 the Applicants lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 14 December 2018 before the Board during which A1 gave evidence for herself and A2 and answered questions raised of their claims by the Adjudicator for the Board. On 11 March 2019 their appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the Applicants’ claims of personal dispute between A1 and her father over her religious conversion but found no reliable evidence of any real intention of A1’s father to seriously harm or kill either of them other than some angry words and empty threats, that he was by then already in his 70s and that after all these years since their last contact in 2008 that it is not accepted that any threats from her father still exists or that he even knew of A2’s existence who was not even born at that time, and that in any event it was a private family dispute between A1 and her father only without any official involvement that state or police protection would be available to the Applicants upon their return to the Philippines where there are laws to protect unwed mothers and illegitimate children as well as supports and assistances from various governmental departments and NGOs, while reasonable internal relocation alternatives are also available for them to move safely to other parts of the country away from A1’s home district without any risk of being located that their claims for non-refoulement protection failed on all applicable grounds.

10.  On 2 April 2019 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form or in A1’s supporting affirmation of the same date in which she just repeated their claims as before but without putting forth any proper ground for their intended challenge, nor was she able to do so at the hearing of their application. As such, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

11.  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 his 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.

12.  In the Applicants’ case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in their claims even if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of the Philippines, there is simply no justification to afford either of them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  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 Applicants’ claims.

14.  I am of course mindful of the fact that A2 is a minor at his present age of 12 years old only and without legal representation in these proceedings as required by Order 80 rule 2 of the Rules of the High Court, or for that matter in his appeal before the Board when he was, as in his present application, represented by his mother only, and hence it would be necessary for the Court to scrutinize and examine whether his claim had been properly and separately considered and determined by the Board in a manner sufficiently to meet the high standards of fairness in proceedings of this nature, and to see whether there are underlying matters that may support his potential minor-specific non-refoulement bases which the Board might have failed to properly consider but which A2 was unable to raise due to lack of legal representation in his application now before the Court, as held to be the necessary approach by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 in that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

15.  In the case of A2, while his claim was essentially premised on his mother A1’s claim, it is clear from the decision that the Board did separately consider his personal circumstances such as being an illegitimate child born in Hong Kong for any potential risk such as societal discrimination against him upon his return to the Philippines with his mother but found no such risk exists, and that it was also satisfied that there are laws in the country to protect A2 as a Filipino citizen from discriminations or persecutions as well as supports and assistances available from various governmental departments and NGOs (see [101] – [104] of the Board’s decision) that he would not face any proscribed risk upon his return with his mother to the Philippines. As such, and as I am also unable to find any underlying matters which may support potential minor-specific non-refoulement bases in A2’s case which might not have been properly advanced to or considered by the Board, and as I do not find any merits in A2’s intended application, I shall therefore treat his lack of legal representation in these proceedings as a mere irregularity as adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, and applied in Re Jasvir Singh [2021] HKCA 53.

16.  In the premises, and for all these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss their application.

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