AGUINENSOR CECILE LUMACANG AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

1.  Leave for the Applicants to apply for Judicial Review be refused; and

2.  Non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings be treated as a mere irregularity without rendering the application of the 2^nd, the 3^rd and the 4^th Applicants a nullity.

Observations for the Applicants:

THE APPLICATION

1.  The Court granted leave to join the 3^rd applicant and the 4^th applicant, who are the son and the daughter of the 1^st applicant as parties because they are members of the family and their applications are based upon the 1^st applicant’s facts.

2.  The 1^st applicant is the mother (“the mother”) of the 2^nd applicant, her son, aged 8 (“the 1^st son”), of the 3^rd applicant, her son, aged 6 (“the 2^nd son”) and of the 4^th applicant, her daughter, aged 2 (“the daughter”).  They are illegal immigrants.  The mother gave birth to the children in Hong Kong.  

3.  The applicants jointly apply for leave to apply for judicial review of the Decisions of the Torture Claims Appeal Board respectively dated 14 May 2020 for the  mother and the 1^st son (“the Board’s 1^st Decision”); 14 January 2021 for the 2^nd son (“the Board’s 2^nd Decision”); and 26 September 2025 for the daughter (“the Board’s 3^rd Decision”), collectively called (“the Board’s Decisions”).  The respective Board’s Decision will be discussed separately below, though they are inter‑related and can be considered together to appreciate the Board’s consideration of the children’s situations.

4.  The applicants appeared before the Court on 14 January 2026.  

5.  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

6.  The applicants are nationals of the Philippines.  

7.  The applicants lodged a non-refoulement claim, on the basis that, if refouled, the mother will be harmed or killed by the bandits/group of people similar to the New People’s Army (“the enemies”) as she stopped providing them with money.  She obtained the information from her mother in the Philippines.

8.  Details of the facts are set out in the Board’s 1^st Decision. See hyperlink for the Board’s Decisions.

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001063_2020_files/1st_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001063_2020_files/2nd_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001063_2020_files/3rd_Board's_Decision.pdf

The Director’s Decisions

9.  On diverse dates, the mother applied to the Director of Immigration (“the Director”) for herself and her children for non-refoulement protection.

10.  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”).

11.  By way of the Director’s Decisions, the Director assessed the applicants’ claims on all applicable grounds and dismissed their claims on all applicable risks because they were unsubstantiated.

The Board’s Decisions

12.  The applicants appealed the Director’s Decisions to the Board.  On diverse dates, the Board conducted oral hearings for their appeals.  The mother had given evidence and answered the Board’s questions.  The Board had also summoned the father of the children to assist it to assess the daughter’s specific issues.  The respective Board’s Decisions are discussed below.

The Board’s 1^st Decision in relation to the mother and the 1^st son

13.  Having considered the evidence, the Board made the findings below.

(1)   The enemies had never threatened or harmed the mother or her family in the Philippines. [56]

(2)   The Board did not accept that the enemies had identified the applicant as their target. [57]

(3)   The country of origin information (“COI”) indicates that the government of the Philippines continues to suppress the enemies’ operations and seeks to eradicate them throughout the Philippines. [58]-[60]

(4)   The mother and her son will not be at any real risk of harm if they return to the Philippines. [61]

(5)   Applying the above findings to the applicable risks, the Board found that the applicants will not be at risk if they return to the Philippines.

The Board’s 2^nd Decision in relation to the 2^nd son

14.  Having considered the evidence, the Board made the findings below.

(1)   There was no evidence that the mother and the son will be subjected to any risk of harm if they return to the Philippines. [53]

(2)   There was no evidence that the state was involved. [62]

(3)   State protection will be available to them. [65]

(4)   Internal relocation is viable. [84]-[87]

The Board’s 3^rd Decision in relation to the daughter

15.  Having considered the evidence, the Board made the findings below.

(1)   The mother had raised the issue of discrimination and bullying because the daughter was a mixed-race child.  The Board decided that the daughter will not be subjected to discrimination if she returns to the Philippines. [82]

(2)   The mother had delayed her non-refoulement claim, which was taken into consideration when the Board considered her credibility. [97(d)]

(3)   The enemies had never threatened directly or hurt the mother or her family. [97(e)]

(4)   State protection will be available. [97(g)]

(5)   The daughter will not be subjected to discrimination in the Philippines. [97(h)]

(6)   If the daughter returns to the Philippines or to Pakistan with her father, her parents will look after her, and there is no factual basis that she will be subjected to any harm in the parents’ countries. [101] & [105]

(7)   There was no evidence that the state was involved. [109]

(8)   Internal relocation will be viable. [138]

16.  For the reasons above, the Board dismissed the applicants’ appeals and confirmed the Director’s respective Decisions. 

Application for leave to apply for judicial review

17.  The 1^st and 2^nd applicants filed Form 86 on 1 June 2020 for leave to apply for judicial review of the Board’s Decisions.  The 3^rd applicant and the 4^th applicant are joined as parties as well.

18.  In support of their joint application, the mother has not raised any ground to challenge any of the Board’s Decisions.

DISCUSSION

19.  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 Decisions 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).

20.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.  Before me, I asked the mother if there were any child specific issues, which were not put to the Board for consideration because they were not legally represented.  The mother said that she had to stay as she was scared.

21.  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 held that in such circumstances, it is incumbent upon the Board to see if there were any child-specific issues, which were not brought to the Boards’ attention because of lack of legal representation for the minors, and to have separate consideration of the child specific issues as the minors are more venerable to the applicable risks than the parent.

22.  The Court of Appeal in Re: Jasvir Singh & Ors  [2021]HKCA 53 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 .”

23.  The Board had considered the children’s situations separately.  I am satisfied that the Board had administered high standards of fairness in the assessment of the children’s cases.

24.  Those reasons under paragraph 18 do not constitute valid reasons in support of the applicants’ claim.

25.  The Court of Appeal in Re Penol, Sally Barsolaso & Diggs Paul Derrick [2024] HKCA 790, Hon Chu VP and Barma JA, 22 August 2024 held:

“27. Importantly, both before the Board and in the applications before the Judge and in the present application, the 1^st applicant has not identified any other risks of harm that the 2^nd applicant [the child] may separately face in the Philippines.

28. On the papers available to this Court, we also do not see any material that may give rise to a concern of potential non-refoulement grounds relating specifically to the 2^nd applicant but which had not been advanced to the Board or considered by it because of the lack of legal representation on his behalf before the Board.

29.   In the premises, we do not find the 2^nd applicant’s intended judicial review reasonably arguable or any basis to disturb the Judge’s refusal of leave to apply for judicial review.”

26.  The mother has not raised any concern of potential non-refoulement grounds relating to the children, but which had not been advanced to the Board or considered by the ‘because of lack of legal representation’ on their behalf before the Board.   Therefore, I consider that the applicants do not have any reasonable prospect of success in their intended judicial review of the Board’s Decisions.

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

DISPOSITION

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

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