UGOT REMICHELLE SUMAOANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3077/2019 and HCAL 2184/2024

(Heard together)

[2025] HKCFI 3906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3077 of 2019

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2184 of 2024

(Heard together)

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 1st Applicant being present and 2nd Applicant being absent in open court;

1.  Leave for the applicants to apply for Judicial Review against the Board’s Decisions be refused; and

2.  Non-compliance with Order 80, rule 2 of the RHC in these proceedings be treated as a mere irregularity without rendering the 2^nd applicant’s application a nullity.

Observations for the Applicants:

THE APPLICATION

1.  The 1^st applicant, aged 46, is the mother (“the mother”), and the 2^nd applicant, aged 4, is her daughter (“the daughter”). The mother filed Form 86 on 18 October 2019 for herself. She filed another Form 86 on 18 November 2024 for her daughter where she acted as guardian ad litem. This Court ordered these 2 applications to be consolidated and heard them together.

2.  The Director had made the decisions as follows:

(1)  Notice of Decision dated 18 April 2019 (“the Director’s 1^st Decision”) dismissing the mother’s claim; and

(2)  Notice of Decision dated 31 March 2022 (“the Director’s 2^nd Decision”) dismissing the daughter’s claim.

3.  The Board had made the decisions as follows:

(1)  Decision dated 10 October 2019 (“the Board’s 1^st Decision”) dismissing the mother’s appeal; and

(2)  Decision dated 28 June 2024 (“the Board’s 2^nd Decision”) dismissing the daughter’s appeal, having taken into consideration of the mother’s claim as well.

4.  The applicants apply for leave to apply for judicial review of the Board’s Decisions. The Board’s 2^nd Decision subsumes the Board’s 1^st Decision as their joint application relies upon the facts of the mother, the 1^st applicant. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003077_2019_files/the_Board's_Decision.pdf.

5.  The mother appeared before the Court on 2 July 2025.

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 nationals of the Philippines. The mother last arrived in Hong Kong as a domestic helper since 2014 but when her contract was terminated, she did not depart and overstayed in Hong Kong since 23 April 2014. She surrendered to the Immigration Department on 21 August 2018.

8.  The daughter was born in Hong Kong on 31 March 2021. Her father is a Pakistani. In due course, the applicants lodged their non-refoulement claim.

9.  The applicants’ claim was based on the mother’s fear that she will be harmed or killed by a creditor; that her family will not accept her since she converted to Muslim; and that she would face discrimination in the local community, which is dominated by Catholics.

10.  According to the mother, she borrowed 50,000 pesos from the creditor to pay for the agency fee for coming to Hong Kong, but was unable to make a loan repayment and the creditor threatened her that something bad would happen to her if she returned to the Philippines. She then bumped into her creditor in Hong Kong where he asked for the repayment, but the applicant fled. The mother also gradually practiced Islam and fears that she will be discriminated upon her return. Details of their claim are set out at paragraph 7 of the Notice of Decisions dated 18 April 2019 and 31 March 2022 by the Director (respectively, the “Director’s 1^st Decision and the Director’s 2^nd Decision”), collectively called (“the Director’s Decisions”).

The Director’s Decisions

11.  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”).

12.  By way of the Director’s Decisions, the Director assessed the applicants’ claim on all applicable grounds and dismissed their claims. In summary, the Director found that: there were no substantial grounds for believing that there would be any real risk of the mother being harmed; that no evidence adduced indicating that the creditor was determined to inflict severe or fatal harm against the mother, and the mother never sought any assistant to any authority in the Philippines; that reasonable state protection was available the mother and the daughter; and that internal relocation alternatives were not unduly harsh.

The Board’s Decisions

13.  The mother appealed the Director’s 1^st Decision to the Board.

14.  Having considered the evidence, the Board in its 1^st Decision on the mother’s appeal, found that the mother was evasive and rejected her evidence, and did not accept that her loan agreement only contained the creditor’s name but not his identification number or contact details [73-80]. In any event, the Board found that internal relocation was reasonable and not unduly harsh for the mother [93-95]. In conclusion, the Board held that the mother’s claim failed under all applicable grounds. It therefore, by the Board’s 1^st Decision, dismissed the mother’s application for leave to appeal and confirmed the 1^st Director’s Decision.

15.  The daughter appealed the Director’s 2^nd Decision to the Board, her mother acting as her guardian.

16.  On 3 August 2023, the Board conducted an oral hearing for her appeal.

17.  In the Board’s 2^nd Decision, the Board found that the 2^nd applicant’s claim failed on all applicable grounds. The Board did not accept that the mother was indebted to the creditor and even if her case was accepted, the creditor did not seriously intend to harm or kill her or her family [108-115]. In any event, the Board found that state protection was available [115] and internal relocation was reasonable and not unduly harsh for them [143-145]. In conclusion, the Board held that the 2^nd applicant’s claim failed under all applicable grounds. It therefore dismissed the 2^nd applicant’s appeal and confirmed the Director’s 2^nd Decision.

Application for leave to apply for judicial review

18.  The 1^st applicant filed Form 86 on 18 October 2019 for leave to apply for judicial review of the Board’s 1^st Decision. The 2^nd applicant filed Form 86 dated 18 November 2024 for leave to apply for judicial review of the Board’s 2^nd Decision. The applicants did not put forth any valid grounds in support of their applications.

19.  In the affidavit in support of the application, the mother stated that the Board failed on the ground of procedural impropriety, an error or misdirection in the law, without taking into account psychological strain and threats. These are bare assertions without any evidence in support. The daughter relied on her mother’s reasons to challenge the Board.

DISCUSSION

20.  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).

21.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. The mother appeared before me and said that her daughter was at school. The father is a Pakistani and he had also applied for refugee status.

22.  Insofar as the mother is concerned, those grounds under paragraph 19 are bare assertions without any evidence in support. They are not valid to challenge the Board’s 1^st Decision.

23.  The 2^nd applicant was 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 minors’ claims to see if there were any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation.

24.  The Court of Appeal in Re: Jasvir Singh & Ors [2021] HKCA 53, 14 January 2021, Hon Lam VP and AU JA, 14 January 2021 further held:

“33. … 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 .”

25.  The Board had considered the 2^nd applicant’s situation separately. In the Board’s 2^nd Decision, it can be seen that the Board had taken on board the issues of legitimacy, social support, and education for Muslim children in the Philippines. The Board had further considered the risk from the creditor, the mother’s family and the society. [73]-[130] It evaluated each of the applicable risks to the 2^nd applicant and finally concluded that the 2^nd applicant’s claim failed on all applicable risks. [146] I am unable to find any other related issue, which the board had failed to take into consideration.

26.  The applicants have not raised any valid reason to challenge the Board’s Decisions.

27.  The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review against the Board’s 1^st Decision and the Board’s 2^nd Decision.

DISPOSITION

28.  I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decisions. Accordingly, I dismiss their applications.

29.  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.

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