DELA CRUZ GENELITA R AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2523/2019

[2025] HKCFI 2198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2523 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The 1^st applicant, aged 56, is the mother and the guardian ad litem of the 3^nd applicant, her son, aged 17, and the 4^th applicant, her daughter, aged 13. The 2^nd applicant is now 26, of age herself. I shall call the 1^st applicant (the mother), the 2^nd applicant (the elder daughter), the 3^rd applicant (the son) and the 4^th applicant (the youngest daughter), unless otherwise stated.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 24 May 2018 of the Torture Claims Appeal Board (“the Board’s Decision”). Their joint application relies upon the facts of the mother.

3.  As there are minors in this application, the Court has duly advised the mother to apply for legal aid for her children and fixed a hearing for them. However, they were absent at the hearing on 7 April 2025. I shall deal with their joint application on the papers.

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 mother came to Hong Kong to work as a domestic helper in February 1994. Her employment contract was terminated and she overstayed since 15 February 1996. She was arrested by police on 11 July 2011 for breach of stay, for which she was imprisoned for 8 months. She gave birth to her children in Hong Kong. On behalf of herself and her children, the mother lodged non-refoulement claim for the reason that, if refouled, she and her children will be harmed or killed by her brother, Crisanto, because she did not send him money to settle his debts, which he obtained from 5 creditors for her agency fees for coming to Hong Kong to work as a domestic helper.

6.  According to the mother, her brother was in trouble with his creditors over the debts. Her brother had told her that he disowned her and threatened to kill her if she returns to the Philippines. This is the main reason for her claim. The details of her story are set out in paragraph 9 of the Notice of Decision dated 28 October 2016, (“the Director’s Decision”).

The Director’s Decision

7.  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”).

8.  By way of the Director’s Decision, the Director assessed their claims jointly and dismissed their claims. In elaboration, the Director found that: there was no evidence to show that her brother had the intention of harming or killing her; there was no evidence that the state was involved and she will have state protection if she returns to the Philippines; and internal relocation is viable. [16]-[23]

The Board’s Decision

9.  The applicants appealed the Director’s Decision to the Board. On 1 February 2018, the Board conducted an oral hearing for their appeals.

10.  Having considered the evidence, the Board had made the following findings:

“31. …her delay in making a claim as [sic] damaging to her credibility. …I do not consider that a delay of 17 to 19 years in making her claim is reasonable,…

33. … I found her evidence as to her claim to fear her family should she return to the Philippines to her unconvincing. …

35. In summary, I find that the Appellant’s claim regarding her problems in the Philippines are not credible. …”

37. … I consider that the Appellant’s claims are not credible. …

38. …even if the Appellant’s claims were to be accepted in full, they do not provide substantial grounds for a finding that there is a real risk that she would be harmed by her brother or anyone else in her family should she return to the Philippines. …

41. In relation to other Appellants, as noted above, they all have stated that they depend solely upon their mother’s claims, and have not sought to advance any claims of their own. As the materials referred to in the attachment state, it is for an appellant to substantiate a torture claim and to provide the Director with all information relevant to his claim. s. 37ZA(1) of the Ordinance. For the reasons set out above, I do not accept that the Appellant’s claims are well-founded. Accordingly, I do not accept that the other Appellants face a real risk of ill-treatment as claimed if they return to the Philippines.”

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

Application for leave to apply for judicial review

12.  The applicants filed Form 86 on 30 August 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In the supporting affidavit, the applicants did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

14.  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).

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

16.  It is apparent that the applicants were not legally represented before the Board. 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 held that in such circumstances, it is incumbent upon the Board to have separate consideration of the minor’s claim to see if there are any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation.

17.  It seems that the Board had already discharged its duty in this case. See paragraph 41 of the Board’s Decision above. The Board referred to the materials before it and the burden of the applicants to raise their claims under s.37ZA(1) of the Ordinance. I consider that the Board had properly discharged its duty and the applicants have no cause of complaint under the following circumstances:

(1) Section 37ZA(1) applies to the children as it applies to the mother.

(2) The Board had considered the materials before it and it did not find any special circumstances that applied specifically to the children.

(3) The Board does not have any further duty to act as the children’s legal adviser as held in Re: RS CACV 206/2012, unrep., Hon Lam, Barma JJA and Macrae J. (as they then were):

“57. The high standards of fairness do not require the Adjudicator to play the role of an adviser to the Applicant to cover every possible gap in the Applicant’s case…”

(4) Even up to this stage, the applicants have not been able to say what child specific issues that the Board should have considered if they were legally represented. This Court does not find any of such child specific issue too. The eldest daughter is already of age. The son and the youngest daughter were born in Hong Kong and they are national of the Philippines. In these circumstances, the Court of Appeal in Re Penol, Sally BArsolaso & Iiggs Paul Derrick [2024] HKCA 790, Hon Chu VP and Barma JA, 22 August 2024 held:

“27. Importantly, both before the Board and in the applications before the Judge and in the present application, the 1st applicant has not identified any other risks of harm that the 2nd applicant [the child] may separately face in the Philippines.

28. On the papers available to this Court, we also do not see any material that may give rise to a concern of potential non-refoulement grounds relating specifically to the 2nd applicant but which had not been advanced to the Board or considered by it because of the lack of legal representation on his behalf before the Board.

29. In the premises, we do not find the 2nd applicant’s intended judicial review reasonably arguable or any basis to disturb the Judge’s refusal of leave to apply for judicial review.”

18.  I therefore find that the applicants have failed to show that their intended judicial review of the Board’s Decision has any realistic prospect of success.

DISPOSITION

19.  I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

20.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 3^rd and the 4^th applicants’ application a nullity.