SALAS JENNYLYN CAJAPE AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

CACV 284 /2025, [2026] HKCA 480

On appeal from [2025] HKCFI 1739

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 284 OF 2025

(ON APPEAL FROM HCAL NO 750 OF 2023)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 29 April 2025, Deputy High Court Judge Bruno Chan refused to grant leave to the applicants to seek judicial review against the decisions of the Torture Claims Appeal Board (“the Board”)  concerning their non-refoulement protection claims[1]. The 1^st applicant lodged a Notice of Appeal against the said decision of the judge on 12 May 2025, for herself and on behalf of the 2^nd and 3^rd applicants.

2.  The 2^nd and 3^rd applicants are minors and their applications for legal aid have been refused.  No further steps have been taken by the 1^st applicant to comply with Order 80 rule 2 of the Rules of the High Court (Cap 4A)  for the appointment of a next friend or solicitor for the 2^nd and 3^rd applicants.  Notwithstanding this, this appeal can be allowed to stand as the court has a discretion under Order 2 rule 1 of the Rules of the High Court to treat such non-compliance as a mere irregularity without rendering the proceedings a nullity.

3.  The 1^st applicant has submitted written consent to the appeal to be disposed of on paper without an oral hearing.

Background

4.  The 1^st applicant is a national of the Philippines who had been allowed to work in Hong Kong as a foreign domestic helper since 2009.  She gave birth to her son, the 2^nd applicant in Hong Kong on 14 June 2019.  Upon completing her last employment on 26 February 2020, the 1^st and 2^nd applicants did not depart Hong Kong and subsequently overstayed.  They raised a non-refoulement claim on the basis that, if they return to the Philippines, they would be harmed or killed by the 1^st applicant’s husband because of the 1^st applicant’s extra-marital affair with another Filipino man who is also a non-refoulement claimant.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 17 September 2020 the Director of Immigration (“the Director”)  rejected the claims of 1^st and 2^nd applicants on all the applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].  The 1^st and 2^nd applicants lodged their appeal against the Director’s decision and were represented by Duty Lawyer in their appeal before the Board.  Their appeal was dismissed by the Board on 23 February 2023.

6.  The 1^st applicant gave birth to her second son out of the same relationship, the 3^rd applicant herein, on 20 January 2022.  She raised a non-refoulement claim for the 3^rd applicant on the same basis, which was refused by the Director by a Notice of Decision dated 31 October 2022.  The 3^rd applicant was represented by Duty Lawyer in his appeal before the Board.  His appeal was dismissed by the Board on 27 February 2024.

The intended judicial review

7.  The 1^st applicant filed a Form 86 and an affirmation on 17 May 2023 for herself and the 2^nd applicant to seek leave to apply for judicial review against the decision of the Board under HCAL 750/2023. 

The judge’s decision

8.  The 1^st applicant attended the hearing before DHCJ Bruno Chan on 6 March 2025.  The judge allowed her to include the 3^rd applicant in the leave application as his appeal has already been dismissed by the Board by then.  The leave application was dismissed by the judge on 29 April 2025.

Grounds of appeal

9.  In the Notice of Appeal filed on 12 May 2025, the applicants stated that the court disregarded their dangerous situation. 

10.  In the written submissions, the 1^st applicant further contended that:

(1)  The court should consider whether the assessor fully understood the applicants’ problems in the Filipino context when assessing their case.  The Board has been judging the case arbitrarily and the investigation has not taken into account the cultural context;

(2)  Her sons were borne out of wedlock and her husband has a history of violence so returning to the Philippines with her two sons will put the children at risk;

(3)  Women are often unprotected in the Philippines;

(4)  The children are vulnerable and would face more dire consequence should they return to the Philippines.  They would likely be the targets of attack.

Legal principles

11.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

Analysis and disposition

12.  The judge has given detailed explanations for rejecting the 1^st applicant’s application in the decision.  He had considered the Board’s decision and held that there is no error of law, procedural unfairness or failure to apply high standards of fairness.  The Board had considered the relevant Country of Origin Information in assessing the case.  The 1^st applicant does not have any reliable evidence to refute the Board’s findings.  She also failed to show that the judge had made any errors of law, or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.  Her appeal is devoid of merit and is therefore dismissed.

13.  It is necessary for the Court of Appeal to consider separately the positions of the 2^nd and 3^rd applicants as they are minors (Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 at §§34 to 36).  Further, they have not been legally represented in these proceedings in the Court of First Instance as required under Order 80, Rule 2 of the Rules of the High Court.

14.  The proper approach to deal with children’s non-refoulement claims has been considered by the Court of Appeal in Fabio Arlyn Timogan and Re Jasvir Singh [2021] HKCA 53 which established that:

(1)  Non-refoulement claims by minor, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the minors;

(2)  Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately.  It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

(3)  Ill-treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child.

15.  In the present case, the Board had taken separate consideration of certain personal circumstances of the 2^nd and 3^rd applicants.  The Board took into account the fact that the 2^nd applicant has a grandmother and a father who would likely return to the Philippines with him and hence specifically rejected the submission that the 2^nd applicant would become a street child.  The Board also assessed that the child-focused forms of harm are very low.  In assessing the case of the 3^rd applicant, the Board considered there is no reason to suppose that the 3^rd applicant, with the assistance of his mother, father and grandparents in the Philippines, would not be able to make use of the shelters and residential care facilities in the very unlikely event that his mother’s husband (who had no contact with her since 2016)  might harm him.  Furthermore, the Board also found there is no risk that the 3^rd applicant would be separated from his mother as a result of any conviction for adultery and there is no reason to suppose that he could not be cared for by his father or grandparents even if he were to be separated from his mother.  In addition, the Board assessed that the 3^rd applicant would be able to live a relatively normal life as judged by the standards on the ground in the Philippines for a child living with its mother, and that relocation would be reasonable and not unduly harsh for him.

16.  Under the circumstances of the present case, we consider that the said separate consideration of the Board is adequate under the principles in Fabio Arlyn Timogan. 

17.  The judge treated the absence of legal representation of the 2^nd and 3^rd applicants before him as a mere irregularity, having scrutinised and examined whether their claims had been properly and separately considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this kind, and to see whether there are underlying matters that may support potential minor-specific non-refoulement bases which the Board might have failed to properly consider but which the 2^nd and 3^rd applicants were unable to raise due to the lack of legal representation, following the guidance in Fabio Arlyn Timogan.  There is no error in his approach.

18.  We take the view there is no reasonable prospect of success in the 2^nd and 3^rd applicants’ intended judicial review and dismiss their appeal accordingly.