SALAS JENNYLYN CAJAPE AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 750/2023

[2025] HKCFI 1739

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 750 OF 2023

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the 1st Applicant in open court;

1.  Leave to amend Form 86 to include the 1^st Applicant’s second son, Entendez John Rev as the 3^rd Applicant be granted; and

2.  Leave for the 1^st, 2^nd and 3^rd Applicants to apply for Judicial Review be refused.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 40-year-old national of the Philippines who had been allowed to work in Hong Kong as a foreign domestic helper since 2009 last arrived in Hong Kong on 18 August 2018 with permission to continue to work until the expiration of her employment contract on 26 February 2020 or within 14 days of its early termination, during which on 14 June 2019 she gave birth to her son, 2^nd Applicant (“A2”) out of a relationship with a Filipino man in Hong Kong, and upon completing her last employment on 26 February 2020, A1 and her son did not depart and instead overstayed in Hong Kong, and on 12 March 2020 they surrendered to the Immigration Department and raised a non‑refoulement claim for protection on the basis that if they returned to the Philippines they would be harmed or killed by A1’s husband for having an extra-marital affair with that Filipino man which led to the birth of A2. They were subsequently released on recognizance pending the determination of their claim.

2.  A1 was born and raised in Bataan, the Philippines. After leaving school she worked as a caregiver in her home district, and married her husband Mark who however turned out to be a drug addict and a member of a local gang with no regular job or income, and instead demanded A1 to earn more money to support him, and so in 2005 A1 went to Taiwan to work as a domestic helper until 2009 when she started coming to Hong Kong to work as a foreign domestic helper.

3.  In June 2016 when she returned to the Philippines for holiday, A1 discovered that Mark had become so addicted to drugs that he would easily become violent in his behavior, and on one occasion he even attacked a stranger outside his house with a knife for no reason that A1 became so frightened that she left on the following day to return to Hong Kong to carry on with her employment.

4.  In about mid-2017 A1 met another Filipino man by the name of Junrey who happened to be a non-refoulement claimant in Hong Kong released on recognizance pending the determination of his claim by the Immigration Department, and with whom she soon formed a relationship, but later when her husband Mark in the Philippines heard about their affair from other Filipino foreign domestic helpers in Hong Kong, he became furious and called A1 on the phone and threatened to kill her when she returned to the Philippines, and so after giving birth to A2 out of her relationship with Junrey in June 2019, and upon subsequently completing her last employment, A1 was afraid to return to the Philippines and therefore overstayed in Hong Kong and raised a non‑refoulement claim for protection for herself and A2, and for which she completed a Non-refoulement Claim Form (“NCF”) on 5 June 2020 jointly for both of them and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 17 September 2020 the Director of Immigration (“Director”) rejected the claims of A1 and A2 on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision the Director took into account of all the relevant circumstances of the claims of both A1 and A2 and found no substantial grounds for believing that there will be any real and substantial risk of them being harmed or killed by Mark upon their return to the Philippines due to the absence of or low intensity and frequency of past ill‑treatment from him, that there is no evidence of any real intention of Mark to seriously harm or kill either of them other than some angry words and empty threats made on the phone, that in any event it was a private marital dispute between A1 and her husband only without any official involvement that state or police protection would be available to both A1 and A2 if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that there are laws in the Philippines to protect single mothers and illegitimate children with support and assistances from various government departments and NGOs available to A1 and A2 as well as reasonable internal relocation alternatives in the Philippines with a large population of 109 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move safely with A2 to other areas of the country away from her home district in large cities such as Cebu or Davao City where it would be difficult if not impossible for A1’s husband to locate them.

7.  On 23 September 2020 A1 lodged an appeal for herself and A2 to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 25 October 2022 with their lawyer from DLS before the Board during which A1 gave evidence and answered questions raised of their claims by the Adjudicator for the Board and with submissions made on their behalves by their lawyer. On 23 February 2023 their appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies and discrepancies in A1’s evidence that it doubted the credibility of her claim of fear of harm from her husband that caused her to overstay in Hong Kong to seek protection, that even if her account of fear of harm from her husband were true that there was no reliable evidence of any real intention of her husband to seriously harm or kill her or A2, and that in any event it was a private marital dispute between A1 and her husband only without any official involvement that state or police protection would be available to both A1 and A2 upon their return to the Philippines and with financial and other support and assistance from relevant government departments and NGOs as well as reasonable internal relocation alternatives for them to move safely to other parts of the country away from A1’s home district without any risk of being located by her husband that their claims for non‑refoulement protection failed on all applicable grounds.

9.  Meanwhile on 20 January 2022 A1 gave birth to her second son, 3^rd Applicant (“A3”) out of her relationship with Junrey, and for A3 she also raised a non-refoulement claim for protection on the same basis, and for which she completed another NCF on 11 October 2022 and attended a further screening interview before an immigration officer with the same legal representation from DLS as before.

10.  By a Notice of Decision dated 31 October 2022 the Director also rejected A3’s claim on all the applicable grounds upon fining no evidence of any intention of A1’s husband to harm or kill him other A1’s bare assertion and mere speculation, that again in the absence of any official involvement that state or police protection would be available to A3 upon his return to the Philippines as well as reasonable internal relocation alternatives for him to move with his mother to other parts of the country away from her home district without any risk of being located by her husband and with supports and assistances from relevant governmental departments and NGOs for him as an illegitimate child that his claim for non-refoulement protection also failed on all the applicable grounds.

11.  On 7 November 2022 A1 also lodged an appeal for A3 to the Board against the Director’s decision, and for which they also attended an oral hearing on 16 November 2023 with the same legal representation before the Board during which A1 again gave oral evidence for A3’s claim and answered questions raised of his claim by a different Adjudicator for the Board as well as submission made on A3’s behalf by the same lawyer from DLS as before. On 27 February 2024 A3’s appeal was also dismissed by the Board which confirmed the Director’s decision.

12.  In this decision the Board similarly found no evidence of any threats from the husband of A1 or of any intention of him, with whom A1 had had no contact for years since 2016, to harm or kill A3 that there is simply no risk to A3 whatsoever from such source or of any other forms of harm or discrimination that he may face upon his return with his mother to the Philippines, that relevant COI show that if necessary A3 would have access to all civil rights such as education, social support and health care, and that he will be under the care of his mother and likely also his father upon his own refoulement to the Philippines in the event of his non-refoulement claim in Hong Kong being unsuccessful, and in the absence of any other underlying matters which may support potential non-refoulement bases specific to the personal circumstances of A3 raised by his lawyer that the Board concluded that A3’s claim also failed on all the applicable grounds.

13.  Meanwhile on 17 May 2023 A1 filed a Form 86 for herself and A2 for leave to apply for judicial review of the Board’s earlier decision of 23 February 2023 which dismissed their appeal, but no ground for seeking relief was given in the Form or A1’s supporting affirmation of the same date to which she just repeated their claim as before but without putting forth any proper ground for their intended challenge, and at the subsequent hearing on 6 March 2025 when as noted above that A3’s appeal had by then also been dismissed by the Board, A1 therefore requested that A3 be allowed to be included in her leave application for judicial review of this second decision of the Board.

14.  Given the fact that A3’s claim was based on the same primary facts of his mother albeit determined by a different Adjudicator for the Board, and to save time and costs I acceded to A1’s request to include A3 in her leave application for judicial review to challenge both decisions of the Board, and accordingly allowed her to amend the Form 86 to include her second son as the 3^rd Applicant as regard the second decision of the Board as well.

15.  However, apart from repeating the claims for herself and her 2 children as before at the hearing of the application, A1 has failed to put forward any proper ground either for herself or her 2 children for the intended challenge of either decisions of the Board, and in the absence of any error of law or irrationality or procedural unfairness in their processes before the Board or in its decisions being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge of either of the Board’s decisions.

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17.  In the Applicants’ cases, the Board rejected their claims for the thorough and detailed analysis and reasoning set out in its respective decisions by 2 different Adjudicators with the benefit of hearing A1 in her oral evidence and her answers to questions raised of the claims of both herself and her children as well as submissions made by her lawyers in 2 separate appeal hearings before the Board, and in the absence of any error of law or procedural unfairness in their processes before the Board or in its decisions being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge any of the findings by either Adjudicators for the Board.

18.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicants’ claims even if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of the Philippines, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in any of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of any of the claims of the Applicants.

20.  I am of course mindful of the fact that both A2 and A3 are minors at their present respective age of 5 and 3 years only and were without legal representation in these proceedings as required by Order 80 rule 2 of the Rules of the High Court, and hence it would be necessary for the Court to scrutinize and examine whether their claims had been properly and separately considered and determined by the Board in a manner sufficiently to meet the high standards of fairness in proceedings of this nature, 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 A2 or A3 were unable to raise due to lack of legal representation in their leave applications now before me, as held to be the necessary approach by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 in that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

21.  In the present case of A2 and A3, while their claims were essentially premised on their mother A1’s claim, they were both legally represented by the same lawyer from DLS in their respective appeal to the Board when each of their claims had been separately and properly considered and determined by a different Adjudicator as to the specific and personal circumstances of each of them for any non-refoulement bases raised by their lawyer. As such, and as I am also unable to find any other underlying matters which may support potential minor-specific non-refoulement bases in either of their case which might not have been properly considered by the Board, and as there is no merit in their intended application for judicial review, I shall therefore treat their lack of legal representation in these proceedings as a mere irregularity as adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442 and applied in Re Jasvir Singh [2021] HKCA 53.

22.  For all these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss their application.

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