LEE FLOWER JOY ESTEVA AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 3499/2019

[2025] HKCFI 5405

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3499 OF 2019

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;

Leave for the 1^st and 2^nd Applicants to apply for judicial review be refused.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 49-year-old national of the Philippines who last arrived in Hong Kong on 21 March 2016 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, during which she gave birth to her son, the 2^nd Applicant (“A2”) on 27 November 2016, and when her last employment was prematurely terminated on 20 February 2018, she did not depart and instead overstayed, and on 26 October 2018 she together with her son surrendered to the Immigration Department and jointly 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 former boyfriend over A1’s decision to end their relationship. They were subsequently released on recognizance pending the determination of their claims.

2.  A1 was born and raised in La Granja Lopez, Jaena Norte Lapaz, Illoilo City, the Philippines. After leaving school she worked as a cooked food hawker in her home district, and in 1996 she started cohabiting with her boyfriend Larry in Calumpang, Illoilo.

3.  Soon she found Larry to be violent and abusive, and that he was also involved in various illegal activities including drugs trafficking with the local gangs, and had been in and out of prison.

4.  In order to leave Larry and put an end to their relationship, A1 in 2001 started coming to Hong Kong to work as a foreign domestic helper, and when returned to the Philippines for holiday she would only stay in her parents’ home to avoid Larry, but when Larry later found out about it, he threatened her and demanded for money which she would try to give him whatever she could afford at the time before returning to Hong Kong to continue with her employments.

5.  In 2013, A1 found out that Larry had been convicted of some very serious crime and sentenced to very lengthy imprisonment, and believing that she had finally been able to get rid of Larry, A1 subsequently returned to the Philippines to marry her present husband who is also a Filipino and together they bought a property in Balabag Pavia, Illolio City for their matrimonial home before A1 returned to Hong Kong to continue with her employment.

6.  However, in 2015 Larry was released from prison and came to the home of A1’s mother looking for A1, and when he was told that A1 had married another man, he became furious and threatened to kill her when he found her.

7.  In early 2016, A1’s husband came to Hong Kong to visit her, and as a result A1 became pregnant with their son and subsequently gave birth to A2 in November 2016 in Hong Kong, and when her last employment was terminated in February 2018, A1 was afraid to return to the Philippines and therefore overstayed in Hong Kong, and subsequently raised her non-refoulement claim for protection jointly for herself and A2, for which she completed a joint Non-refoulement Claim Form (“NCF”) on 16 April 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 27 May 2019 the Director of Immigration (“Director”) rejected the claims of both 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”).

9.  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 they would be in danger of being harmed or killed by Larry upon their return to the Philippines due to the absence of or low intensity and frequency of past ill-treatment from Larry, that there is no evidence of any real intention of Larry to seriously harm or kill either of them when he was not even aware of A2’s existence, nor is it accepted that Larry would still have any adverse interest in A1 after all these years since she left the country to first come to work in Hong Kong in 2001, that in any event it was a private relationship dispute between A1 and Larry 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 reasonable internal relocation alternatives are available in the Philippines with a large population of 105 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 as well as her husband to other areas of the country away from her home district in large cities such as Manila where it would be difficult if not impossible for Larry to locate them.

10.  On 10 June 2019, A1 lodged an appeal for each of them to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they jointly attended an oral hearing on 3 October 2019 before the Board during which A1 gave evidence and answered questions raised of their claims by the Adjudicator for the Board. On 15 November 2019, their appeals were dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision, the Board found no evidence of any intention of Larry to harm or kill A1 or her son or husband other than her own groundless speculations, that A1 has been married to her husband for some 6 years already and with their own son without any further incident from Larry whom A1 has no idea if he is in fact still in prison and that she would have the benefit of protection from her husband for herself and her son as well as from the state and police upon their return to the Philippines, and that in any event it was a private and personal dispute between A1 and Larry only without any official involvement that state or police protection would be available to both A1 and A2 upon their return to the Philippines as well as reasonable internal relocation alternatives for A1 to move safely with A2 and her husband to other parts of the country away from her home district without any risk of being located by Larry that their claims for non-refoulement protection failed on all applicable grounds.

12.  On 25 November 2019, A1 filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form or A1’s supporting affirmation of the same date in which she just stated that she rejects the decision as the internal relocation alternatives as suggested in the decision would not work but without explaining why or how, nor was she able to put forward any proper ground for their intended challenge at the hearing of their application. As such, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge of the Board’s decision.

13.  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.

14.  In the Applicants’ cases, the Board rejected their claims for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing A1 in her oral evidence and her answers to questions raised of their claims, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board.

15.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the claims of both A1 and A2 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.

16.  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 either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the claim of both A1 and A2.

17.  I am of course mindful of the fact that A2 is a minor at the present age of 9 years old and was without legal representation in his appeal before the Board, or for that matter in his present leave application for judicial review as required by Order 80 rule 2 of the Rules of the High Court, Cap 4A, and hence it would be necessary to separately consider and examine whether his non-refoulement claim had been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness required for proceedings of this nature, and to see whether there are underlying matters that may support his potential minor-specific non-refoulement bases but which might not have been advanced to the Board due to lack of legal representation in his appeal before the Board, as the Court of Appeal held in Fabio Arlyn Timogan [2020] HKCA 971 that claims of minor children even if based on the same set of primary facts are separate from 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.

18.  Fabio Arlyn Timogan however is not authority for the proposition that any decision of the Board in relation to children claimants of tender age must be quashed if they were not legally represented, as the same Court of Appeal in the subsequent case of Re Jasvir Singh [2021] HKCA 53 held as follows:

“31. … the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] – [54].

32. If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC. Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board. See: Fabio Arlyn Timogan at [50] – [53], [56] – [57].

33. Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80 rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”

19.  In the present case of A2, as noted above that the Board in rejecting his claim did already note in its decision that he was born to the wedlock of A1 and her Filipino husband and hence also of Filipino nationality as his parents, and that he can safely return with his parents to the Philippines or to move with them anywhere within his home country without any risk of any proscribed harm from anyone. As such, and upon scrutinizing the factual basis of A2’s claim, I do not find any underlying matter that may support his minor-specific non-refoulement grounds such as illegitimacy or racial or cultural factors that may be applicable in his case but which might not have been properly advanced to the Board due to lack of legal representation for him during his appeal, and having found no merits in his intended application for judicial review, I shall accordingly treat the absence of legal representation for A2 in his present leave application as a mere irregularity as in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, and discussed in Fabio Arlyn Timogan.

20.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the intended application of either A1 or A2 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