PASCUA JENNY LYN DOMINGO acting the next friend of PASCUA KHABIB KHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 581/2026

[2026] HKCFI 3170

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 581 of 2026

Application for Leave to Apply for Judicial Review

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

Following:

1.   Leave to apply for Judicial Review 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 applicant’s application a nullity.

Observations for the Applicants:

THE APPLICATION                                                                        

1.  Acting by his mother (“the mother”) as the next friend, the applicant applies for leave to apply for judicial review of the Decision dated 2 February 2023 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant did not ask for a hearing.

3.  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 1^st named acting as the next friend of the applicant, a minor, the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant                         

4.  The applicant is a national of the Philippines.  He is an illegal immigrant.  Acting by the mother, he lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by the mother’s husband in the Philippines.

5.  Details of his claim are set out in the Board’s Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL000581_2026_files/the_Board's_Decision.pdf.

6.  The applicant’s claim relies on the facts of the mother, who had lodged her non-refoulement claim with the Director and her application was rejected by the Director’s Decision dated 18 February 2018.

7.  The mother appealed to the Board, which dismissed her appeal.  She applied for leave to apply for judicial review of the Board’s decision dismissing her appeal.  By Order dated 14 December 2022, this Court dismissed her application.  She appealed.  By Judgment dated 5 May 2023, the Court of Appeal dismissed her appeal. She filed a Notice of Motion for leave to appeal to the Court of Final Appeal.  By Judgment dated 12 July 2023, the Court of Appeal dismissed her Notice of Motion.

The Director’s Decision

8.  The Director considered the applicant’s claim 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”).

9.  By way of Notice of Decision dated 7 January 2022 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board.  On 11 November 2022, the Board conducted an oral hearing for his appeal.

11.  Before the Board’s hearing, the Board had considered the Court of Appeal’s decisions in Fabio and Others [2020] HKCA 971, Jasvir Singh & Others [2021] HKCA 53 and Alaya and another [2021] HKCA 206 and had written to the duty lawyer scheme for provision of legal representation for the applicant.  The duty lawyer scheme refused to provide legal representation for the applicant because it considered that there is no merit in the applicant’s application.

12.  Therefore, the applicant was not represented by a lawyer at the Board’s hearing.  His mother had attended the hearing and given oral evidence for him.

13.  The Board had also considered the Court’s decisions in the mother’s claim.  In the mother’s appeal, the Board found that the mother is not a credible witness and rejected her evidence that she might be harmed by her husband if she returns to the Philippines.

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

(1)   The applicant will not be subjected to any real risk of harm from the mother’s husband or discrimination or unfair treatment upon his return to the Philippines with the mother. [37]

(2)   From the country of origin information (“COI”), there are measures to facilitate registration of children born out of wedlock in the Philippines. [38]

(3)   There are various government and non-government support and assistance available for the mother and the applicant. [41]

(4)   There is a wide range of government and non-government services relating to illegitimate children in the Philippines. [43]

(5)   The applicant and the mother will not face a real chance of any harm relating to the mother’s husband and his groups’ claimed drug use and drug dealings. [44]

(6)   State protection will be available if the applicant returns to the Philippines with his mother. [45]

(7)   Internal relocation is viable. [51]

15.  For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

16.  The applicant has filed Form 86 dated 16 March 2026 for leave to apply for judicial review of the Board’s Decision.

17.  In support of his application, the applicant said that he wanted to apply for judicial review of the Director’s Decision and the Board’s Decision.  However, the Director’s Decision has been superseded by the Board’s Decision.

DISCUSSION

18.  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 applicant’s 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

19.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

20.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

21.  The applicant has raised no valid ground to challenge the Board’s findings.

22.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

23.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

24.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 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