BAWA-AN NELLIE FERASAN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 3901/2019

[2025] HKCFI 5735

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3901 of 2019

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicants in open court;

1.  The 1^st and 2^nd applicants’ application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 31 December 2019 (which was amended on 22 July 2025 and further amended on 7 August 2025 with the leave of this court), the applicants applied for leave to apply for judicial review (“the Leave Application”) in respect of a “Decision made by (YUNG Yiu-Wing), Adjudicator of the Non-refoulement Claims Petition (the “Adjudicator”) dated 13 December 2019 (“the Appeal Decision”).

2.  Mr Yung made a decision in his capacity as a member of the Torture Claims Appeal Board (“the Board”) dated 13 December 2019 (“the Board’s Decision”) in respect of the applicants’ appeal/petition against two decisions of the Director of Immigration (“the Director”) dated 31 December 2015 and 27 January 2017 respectively (collectively “the Director’s Decisions”). It is clear that the decision referred to by the applicants in the Leave Application is the Board’s Decision. The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003901_2019_files/the_Board's_Decision.pdf

3.  The Board decided that the 1^st and 2^nd applicants’ applications for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicants’ appeal/petition and confirmed the Director’s Decisions.

The applicants’ case

4.  It is not necessary for this court to repeat the details of the applicants’ case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

5.  In sum, the applicants claimed for non-refoulement protection because if refouled to the Philippines, the 1^st applicant would be killed or harmed seriously by the New People’s Party (“the NPA”) or by her husband Vicente and due to her pervious membership of the NPA and her infidelity. By the same token, the 2^nd applicant would be at the same risk on the 1^st applicant’s account or on his own account.

6.  The 1^st applicant gave birth to the 2^nd applicant in 2001. The 2^nd applicant’s father was a Pakistani visitor and the 1^st applicant met him in Hong Kong. The 1^st applicant claimed that her husband had threatened to report her adultery to the NPA, whose members would harm people who committed adultery. She also alleged that her husband had uttered verbal threats to harm and kill her and her son (ie the 2^nd applicant).

Oral hearings

7.  The original Form 86 was filed by the 1^st applicant to seek leave for judicial review for herself only. She requested for an oral hearing of the Leave Application and her case was heard on 27 February 2025. However, as the applicant had applied for legal aid and was still waiting for the result of her legal aid application, the hearing was adjourned.

8.  The 1^st applicant’s application for legal aid was refused by the Director of Legal Aid on 2 April 2025.

9.  At the resumed hearing on 10 July 2025, the 1^st applicant applied to add her son as the 2^nd applicant. She said that all along, she intended to file the Leave Application with her son, but she forgot to put down his name in the original Form 86. The 2^nd applicant actually accompanied the 1^st applicant to attend the hearing. Although the 2^nd applicant was already 23 years old at the hearing and he could have made a separate leave application as an adult, he was a minor when his appeal/petition was dealt with by the Board and his appeal/petition was heard together with that of the 1^st applicant.

10.  This court considered that the application was justified and therefore granted leave for the 1^st applicant’s son to be added as the 2^nd applicant in the Leave Application and directed that a separate affidavit be filed by the 2^nd applicant on or before 24 July 2025 in respect of the Leave Application.

11.  The hearing was resumed on 21 October 2025. The 2^nd applicant did not file any affidavit as directed. However, both the 1^st and 2^nd applicant confirmed that they would rely on the grounds put forward by the 1^st applicant in her affidavit dated 31 December 2019 as their common grounds for judicial review.

12.  When this court asked them to elaborate on the grounds stated therein, the 1^st applicant only said that the threat still existed although it had already been three decades after the threat was posed on her and the 2^nd applicant. She also said that she had been in Hong Kong for 30 years and the 2^nd applicant was working here. Hence, she did not want to go back to the Philippines.

13.  The 2^nd applicant only added that he was afraid he was not strong enough to keep his family safe if they were returned to the Philippines. He did not know much about his mother’s homeland and he wanted to build a future here in Hong Kong.

Grounds for judicial review

14.  The 1^st applicant did not advance any ground for her intended judicial review in the original Form 86. Both applicants did not advance any grounds for their intended judicial review in the amended Form 86 either.

15.  In the 1^st applicant’s supporting affidavit dated 31 December 2019, she advanced the following grounds for her intended judicial review:-

(1)  “Procedural Impropriety) Failure to properly apply para 2 of the UN committee against Torture General Comment No.2 whereby satisfaction of a National states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event, cf, the TCAB and the Director Decision which focused on whether such reliefs showed merely signs of positive improvement (see also JFK CACV103 / 2014)”.

(2)  “Procedural Impropriety) Failure to conduct sufficient inquiry into the relevant country of origin conditions.the TCAB Failure to consider that I would face serious risk from the NPA organisation who will harm me because of failing to repay the dept, it’s a serious matter for which he would definitely harm me upon refoulement.”

(3)  “Procedural Impropriety/ Irrationality) Failure to reasons for assessment of Lack of BOR 3 risk and / or sufficient basis to support conclusion of lack of BOR 3 risk.”

(4)  “Error/ Misdirection in law) Failing to take into account the considerations of psychological strain and threats to me personally or threats to me directly to kill me.”

(5)  “Procedural Impropriety) The TCAB Failure to consider our fear that my enemies still fear for me, I could not return to my country this circumstance, therefore there are genuine risk awaiting for me, and I could not relocate other places because they could easily trace me wherever i hide in my country.”

(6)  “Procedural Impropriety) The TCAB did not consider that i and my son both life would be at danger. I have still risk from NPA who would be found us immediately upon refoulement, I would like to seek protection my life and my son life who born in HongKong are raised in here.”

(7)  “No sufficient basis to include that i would not be face any real risk upon refoulement.”

16.  As mentioned, the 2^nd applicant did not file any affidavit in support of his Leave Application, nor advance any grounds for it.

17.  Both applicants confirmed that they would rely on the above grounds as asserted by the 1^st applicant in her affidavit dated 31 December 2019.

Discussion

18.  First of all, none of the matters said by the 1^st and 2^nd applicants at the oral hearing before this court could amount to any valid ground for the intended judicial review. They were just the reasons why they wanted to stay in Hong Kong but not mistakes committed by the Board.

19.  Grounds (1) and (2) mentioned above both challenge the Board’s consideration of country of origin information (“COI”), state acquiescence and its conclusion on the availability of state protection. However, the applicants did not give any necessary or relevant particulars, specifics, or elaborations as to how such grounds apply to their cases.

20.  After careful examination of the Board’s Decision, this court notes that the Board had considered the availability of state protection prudently by referring to reliable and the then updated COI and applying the correct key legal principles (see paras 49 – 52 of the Board’s Decision). The basis of the applicants’ claim was different from JFK CACV 103/2014. This court finds no flaw in the Board’s finding. Grounds (1) and (2) are not arguable.

21.  Ground (3) has no merits. The Board discussed the law about BOR 3 Risk in paragraphs 31 and 32 in the Board’s Decision, provided an assessment of the alleged risk in the applicants’ case in detail in paragraphs 34 to 48, applied the law to the facts it found and concluded that the claim on all applicable grounds including BOR 3 Risk was not substantiated.

22.  Grounds (4) to (7) are general allegations against the Board’s finding of fact. The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. Thus, they cannot amount to any valid grounds for the intended judicial review.

23.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director of Immigration and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

24.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicants for the intended judicial review.

25.  In assessing the appeal by the applicants, the Board held two hearings on 20 February 2017 and 1 March 2017 respectively. The applicants were assisted by an interpreter in Tagalog language. The first hearing on 20 February 2017 was adjourned on the 1^st applicant’s application as she said she had a stomachache and could not continue with the hearing. Nevertheless, the applicants were present (the 2^nd applicant was represented by the 1^st applicant) at both hearings and were given the chance to present their cases to the Board in person.

26.  The Board found the 1^st applicant’s evidence inconsistent with her alleged fear of her husband. She took the initiative to call her husband in 2012 after he ceased contact with her since 2007. The Board also found the applicant’s evidence as to the content of the telephone conversation between her and her husband in 2016 conflicting and not credible. The Board further found that her allegation that she would be harmed or killed by the NPA for adultery was merely her bare assertion. The applicant failed to explain satisfactorily why the NPA would harm her seriously, as she was only a regular member and did nothing to betray them.

27.  This court notes that the Board had indeed assessed the 2^nd applicant’s danger independently and cumulatively with the alleged risks arising from the 1^st applicant. The Board stated its reasons in paragraphs 34 and 35 of the Board’s Decision and concluded that the 2^nd applicant’s risk of being harmed either by the NPA or Vicente was low if his case was assessed completely independently from that of the 1^st applicant. The Board considered it appropriate to assess the applicants’ claim for non-refoulement on the basis that both applicants would return to the Philippines in the event that either one failed on their own non-refoulement claim.

28.  The Board had gone through extensive, fully referenced COI to assess the availability of state protection to the applicants. The Board found that despite shortcomings of the police and other law enforcement agencies, there was reasonable provision in the system and the applicants had failed to establish that reasonable protection would not be available to them.

29.  In assessing the viability for the applicants’ internal relocation, the Board had also referred to reliable and updated COI for the applicants’ country from different sources. The Board further considered the availability of assistance for single parents in the Philippines should the 1^st applicant need it. The Board was also mindful that the 1^st applicant had 5 other children who were grown-ups and were in touch with the 1^st applicant all along. The Board considered that the 1^st applicant could safely relocate to other places such as City Manila or Pasig within the Philippines without undue hardship. The Board also considered that it should not be harsh for the 2^nd applicant to settle in the Philippines.

30.  The Board did reassess the applicants’ claims on all the applicable grounds under the USM but found that the applicants’ feared harm, risk of right to life, risk of torture and risk of persecution were unlikely to materialise. Hence, the Board came to the conclusion that the applicants were not entitled to non-refoulement protection on any of the applicable grounds under the USM.

31.  Thus, the Board had fully assessed the applicants’ danger, including the 2^nd applicant’s risks as a minor at the material time independently and cumulatively with the 1^st applicant, but rejected their claims with full justifications.

32.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

33.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicants have failed to establish such a claim and hence leave must be refused.

Conclusion

34.  For reasons aforesaid, the Leave Application is dismissed.

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