YARANON MA SHEILA ELPA AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2234/2019

[2025] HKCFI 742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2234 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The 1^st applicant, aged 43, is the mother and the guardian ad litem of the 2^nd applicant, her son, aged 9.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 16 May 2019 of the Torture Claims Appeal Board (“the Board’s Decision”). Their joint application relies upon the facts of the 1^st applicant.

3.  The applicants appeared before the Court on 12 February 2025.

4.  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

5.  The applicants are nationals of the Philippines. The 1st applicant last arrived in Hong Kong on 12 August 2012 as a domestic helper but her contract was prematurely terminated. She did not depart and instead overstayed since 12 October 2012 and on 20 November 2015, she surrendered to the Immigration Department. The 2nd applicant was born in Hong Kong on 17 February 2016. Subsequently, the 1st and 2nd applicants lodged their non-refoulement claim.

6.  The applicants’ reasons for their claim is that, if refouled, they will be harmed or killed by the 1^st applicant’s family or husband.

7.   According to the 1^st applicant, she married her husband in the Philippines in 2003. In 2005, she discovered that her husband had affairs with someone else and she confronted him. He assaulted her, causing injuries to her face with bruises and swollen eyes. She came to Hong Kong to work as a domestic helper. Her husband went to Saudi Arabia to work as a mechanic. In the beginning of 2014, she met her partner, another Filipino male who is also apply for non-refoulement claim. She gave birth to her son, the 2^nd applicant. Her family refused to accept her and her child. Her in-laws also refused to accept her and her child. They had threatened to kill her. Details of her story are set out in paragraph 8 of Notice of Decision dated 20 January 2017 (“the Director’s Decision”).

The Director’s Decisions

8.   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”).

9.  By way of the Director’s Decision, the Director assessed their claims jointly and dismissed their claims. In summary, the Director found that: there were no substantial grounds for believing that there would be any real risk of being harmed by the 1st applicant’s family members [13]; state protection was available [16-19]; and internal relocation alternatives were available and reasonable [20].

The Board’s Decision

10.  The applicants appealed the Director’s Decision to the Board. On 5 December 2018, the Board conducted an oral hearing for their appeals. They were legally represented before the Board.

11.  Having considered the evidence, the Board found that there was no evidence to support that the family threatened to physically harm the applicants on their return to the Philippines [87]. The 2^nd applicant’s great aunt in Hong Kong has grown fond of him and has communicated that fondness to the 1st applicant’s family and the anger has dissipated and they could once again receive support from other family members [89]. In 2009 when the 1^st applicant’s husband and another woman began to live together, it was clear that the marriage was over [95]. With respect to the 2^nd applicant, the Board accepted that he may face stigmatization and discrimination as a child born out of wedlock but was not persuaded that anecdotal evidence of bullying at school or community reached a minimum level of severity requiring non-refoulement protection [106]. In conclusion, the Board held the applicants’ claims failed under all applicable grounds. It therefore dismissed their appeal and confirmed the Director’s Decision.

12.  It therefore dismissed their appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

13.  The applicants filed Form 86 on 6 August 2019 for leave to apply for judicial review of the Board’s Decision.

14.  In the 1^st applicant’s affirmation in support of her application, the 1^st applicant has raised no specific ground to challenge the Board’s Decision.

DISCUSSION

15.  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 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).

16.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st applicant said that she did not consider that the Board was wrong in its decision. Her concern is that she had adopted her partner’s surname for the 2^nd applicant and she is afraid that her husband in the Philippines will sue her. However, she confirmed that she would divorce her husband in the Philippines.

17.  It is apparent that the applicants were legally represented before the Board. The concern of 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, Hon Lam, Barma and Au JJA, 27 November 2020 does not apply in this case. The 1^st applicant’s concerns in paragraph 12 are not valid to challenge the Board’s Decision in view of the findings by the Board in paragraph 7.

18.  The applicants have failed to show that there is realistic prospect of success in their proposed judicial review.

DISPOSITION

19.  I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision.

20.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2^nd applicant’s application a nullity.