BOLANOS ANJENETTE LOMAWON AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 1255/2019

[2025] HKCFI 1639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1255 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 counsel for the 1st to 4th Applicants (“the Applicants”) in open court;

(1)  Extension of time for the application for leave to apply for Judicial Review be granted;

(2)  Leave for the Applicants to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 16 November 2018 be granted;

(3)  The Applicants do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A);

(4)  The Applicants do serve a copy of the Originating Summons together with all the relevant documents on the Director of Immigration as respondent;

(5)  Costs be in the cause; and

(6)  The Applicants’ own costs be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 46-year-old national of the Philippines who has previously worked in Hong Kong as a foreign domestic helper and who last arrived in Hong Kong on 18 May 2012 with her elder daughter, 2^nd Applicant (“A2”) as visitors with permission to remain as such up to 1 June 2012 when they failed to depart and instead overstayed, and on 3 March 2013 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 creditor over her unpaid debts, and upon being released on recognizance pending the determination of their claims, A1 subsequently also gave birth to her second daughter, 3^rd Applicant (“A3”), and her son, 4^th Applicant (“A4”), and for each of them she also raised a non-refoulement claim on the same basis as hers, and which were to be determined jointly together for all 4 applicants.

2.  A1 was born and raised in Nasisi, Ligao City, Albay Province, the Philippines. After leaving school she worked as a sales agent and project coordinator in her home district to make her living.

3.  In early 2008 she decided to apply to work as a foreign domestic helper in Hong Kong, and in order to meet the necessary agency fees and expenses she borrowed a loan from a neighbor known as Big Brother Art (“Art”) who was said to have political connections with some city mayor or governor, with the loan to be repaid with interests by monthly instalments, and as a result A1 came to Hong Kong in April 2008 to start her employment, during which she was able to make her loan instalment payments to Art from her monthly salaries for about 5 months.

4.  However, in November 2008 her employment was prematurely terminated that A1 was unable to make any further payments to Art, and upon returning to the Philippines A1 managed to persuade Art to allow her further time to repay her loan on her promise to apply for another employment contract in Hong Kong, and for which she subsequently returned to Hong Kong on 8 January 2010 for her new employment, during which she formed a relationship with a Nigerian man who was then a non-refoulement claimant in Hong Kong.

5.  From their relationship A1 on 24 October 2010 gave birth to A2, but as she needed her income to support her daughter, A1 soon stopped making any further repayments to Art, and upon completing her employment in January 2012, A1 returned to her home village in the Philippines with A2, and went to see Art to apologize for not being able to repay her loan, during which Art and his wife were angry and accused her of fooling him around, and made threats against her.

6.  A1 then sought help with the village council and subsequently attended a meeting with a village council member over the loan dispute, for which Art did not attend but sent his wife along who then demanded that A1 should pay Art HK$34,000 within 3 months to settle the outstanding loan.

7.  In order to repay the loan A1 then made arrangement to return to work in Hong Kong, but later when she was informed by her old friend Lester that during a drinking party with Art and his followers, Lester overheard that Art was planning to abduct A2 so as to force A1 to repay her loan, whereupon A1 became fearful for their safety and on 18 May 2012 departed the Philippines with A2 for Hong Kong to be with her Nigerian boyfriend, and subsequently overstayed in Hong Kong and raised the non-refoulement claims for protection for herself and A2, and later upon giving birth also to A3 on 4 September 2013, and A4 on 27 May 2014, A1 also raised a non-refoulement claim for each of them on the same basis, and for which she completed the relevant Non-refoulement Claim Forms (“NCF”) for herself and her children and attended joint screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 28 November 2017 the Director of Immigration (“Director”) rejected the claims of all 4 Applicants 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 Applicants’ claims and assessed the level of risk of harm from A1’s creditor Art and his people upon the Applicants’ return to the Philippines as low due to the absence of any past ill-treatment from them on A1 in the past or on any of her children when there is no evidence that Art was aware of any of them, that there is no evidence of any real intention of Art to seriously harm or kill A1 let alone any of her children other than to press A1 to repay her debts, that in any event it was a private monetary dispute between A1 and her creditor only without any official involvement that state or police protection would be available to all the Applicants 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 104 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 with her 3 children 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 A1’s creditor to locate them.

10.  On 8 December 2017 A1 lodged an appeal for herself and each of her 3 children to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 2 October 2018 before the Board during which A1 gave evidence for herself and her children and answered questions raised of their claims by the Adjudicator for the Board. On 16 November 2018 their appeals were dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board found that A1 had not made out a case where she needed non-refoulement protection, that some of her evidence were purely hearsays and not reliable, that there was not an iota of evidence which suggested that she had been or would be ill-treated upon her return to the Philippines, that in any event that her problem with Art was a private monetary dispute between just the 2 of them only without any official involvement, that relevant COI show that government reforms have been on-going in the Philippines that the police do take action to ensure law and order in the Philippines that state protection would be available to A1 upon her return to the Philippines as well as reasonable internal relocation alternatives within the country with a large population of more than 104 million people spread across 300,000 square kilometers that it is not unduly harsh for A1 as an able-bodied female in her 40s with years of education and working experience to move with her 3 children to other parts of the country away from her home village without any risk of being located that their claims for non-refoulement protection failed on all the applicable grounds.

12.  On 9 May 2019 A1 filed a Form 86 with herself named as the only applicant for leave to apply for judicial review of the Board’s decision, and upon subsequently being granted Legal Aid and with legal representation that her Form was accordingly amended to include her 3 children respectively as A2, A3 and A4, and with the following grounds being put forth for their intended challenge:

(1)  That the Adjudicator wrongly dismissed the Applicants’ claims on the basis that it involved hearsay evidence, and wrongly made adverse credibility/reliability findings against the Applicants without any evidential basis which was an error of law and/or Wednesbury unreasonable;

(2)  That the Board failed to properly assess COI and instead made adverse findings on the basis of COI which had not been put to A1 at the oral hearing and on which she was not given the opportunity to comment or reply, which was Wednesbury unreasonable and/or procedurally unfair;

(3)  That the Board failed to separately assess the claims of A2 to A4 by reference to their personal circumstances and erred in law by deciding the Applicants’ claims as one composite claim, contrary to the principles set out in Fabio Arlyn Timogan & Ors [2020] HKCA 961.

13.  By then the Applicants were however out of time with their application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

14.  As the last day of the three-month period for them to file their Form 86 fell on 16 February 2019, the Applicants were therefore more than 2 months late with their application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

15.  In the Applicants’ case, a delay of more than 2 months must be considered as significant, for which A1 explained in her 2^nd affirmation that at that time she had been subjected to severe abuses from the Nigerian father of her 3 children due to their relationship problems that in late January 2019 she suffered mental stress and trauma that required medical attentions and police assistance, and that eventually she and her children were arranged to move into an emergency shelter until sometime in March 2019 when they managed to move to a new home that A1 was finally able to settle down into dealing with their application by herself without legal assistance until later when she and her children were granted Legal Aid, which all accounted for the delay with the filing of their application.

16.  Having examined those documents attached to A1’s affirmation in support of her explanations, and given the fact that she had been burdened with the care of 3 small children at the material time and the relatively insubstantial delay, I propose to focus on the merits of their intended application.

17.  Before proceeding to consider those proposed grounds of the Applicants as stated above for the challenge of the Board’s Decision, it would be relevant to first set out in full all those findings made by the Board based on A1’s evidence and as stated in [27] of its Decision:

“Having carefully considered all the evidence, I find that she has not made out a case where she needed non-refoulement protection and that some of her evidence was purely hearsay and not reliable.

(i) She did not need 90,000 pesos which was slightly more than HK20,000 for her application to come to Hong Kong as a FDH.

(ii) Although she stated Big Brother Art had connection with active politician, Al Francis Bichara who used to be the Mayor and Governor in Ligao City that politician had never been involved in her transaction with Art.

(iii) In fact Art had never approached her for the return of the loan. She went to see Art and apologized on 2 occasions. Art did not do anything towards her. Art though not happy, he only requested her to pay back the money as soon as possible. On the second occasion, Art only swore at her and accused her of fooling him around.

(iv) Soon after the second time when she apologized whenever she met Art in the village, he would only look at her and her daughter angrily and in a threatening manner.

(v) At the meeting before Linda (a village council member) between her and Art’s wife, Mercy only requested her to pay back to Art HK$34,000 within 3 months.

(vi) Concerning the kidnap plan disclosed by Lester, it was hearsay and not reliable in that:-

(a) Even if what Lester said were true, it was just hearsay. It was not reliable because when Lester joined the party for some alcohol according to Lester, some were already tipsy.

(b) Lester only overheard from two of his friends about the abduction at the time when they were tipsy. It was double hearsay.

(c) Since Art already had a full plan and had asked them to be the lookouts, it was unnecessary for them to talk about it.

(d) Since Lester told her that they mentioned that it took a week to wait for the plan to materialize, there was no reason why she had stayed for so long until 18 May 2012 to escape.

(e) It was just a figment of her imagination that someone was always watching her and her daughter and that someone was hiding in the coconut farm at the back of her house.

(f) It was just another bare allegation that most people in the Philippines believed that she was rich because she married a foreigner even after she explained that he was just another torture claimant.

(vii) There was not an iota of evidence which suggested that she had been or would be ill-treated upon her return to the Philippines.”

18.  It is against these findings made by the Board that the Applicants complain under Ground (1) for its wrongful dismissal of A1’s evidence simply because it was based on hearsay, that it made improper findings against her credibility and/or reliability without sufficient evidential basis, and that the Adjudicator also failed to afford her with the benefit of the doubt when assessing the credibility of her factual claims, as submitted by Ms Denise Souza, counsel assigned for the Applicants.

19.  Upon scrutinizing the Decision, there does appear to me no evidential basis for the Adjudicator to find that A1 did not need 90,000 pesos for her application to come to Hong Kong to work as a foreign domestic helper, and of which the Adjudicator never put to A1 for her comment or clarification, or for Adjudicator to find that the kidnap plan disclosed by Lester unreliable because his friends were tipsy, or that they were asked to be just lookouts and hence it was unnecessary for them to talk about the plan, which all appear to be just based instead on the Adjudicator’s own assumptions and/or speculations, and hence it would reasonably be arguable that there were errors of law or irrationality in the Board’s assessment and determination of the credibility of A1’s evidence.

20.  However, be that as it may, and notwithstanding such errors, the Board did proceed to find, and correctly in my view, that A1’s problem with Art was a private monetary dispute between just the 2 of them without involvement of any government officials that state protection would be available to A1 and her children upon their return to the Philippines that Ground (1), and/or for that matter Ground (2) as well, may not assist or advance their case any further, which thus bring me to their remaining complaints under Ground (3) that the Board had erred in law in failing to separately assess the claims of A2, A3 and A4 as they were, and still are, all minors at the age of 8, 5 and 4 respectively at the time of the Board’s assessment.

21.  Before doing so, it would be relevant to first go to the Board’s assessment of the availability of internal relocation to the Applicants as set out in the Decision as follows:

“50. According to the World Factbook of the US Central Intelligence Agency (last updated on 25 December 2017), the Philippines has an estimated population of more than 104 million people as at July 2017. The country is spread across 300,000 square kilometres.

51. The country consists of more than 6,000 islands. Manila and Cebu are two very large cities in two different big islands with large population and plenty of job opportunities.

52. There was no evidence to suggest that Art has any influence away from her own village.

53. The first petitioner being an able-bodied female, 40 years of old with 15 years of education and 10 years’ working experience, it is not unduly harsh for the first Petitioner to return to the Philippines away from her home village to make a living upon her return to the Philippines with the other 3 Petitioners (her children).”

22.  It seems from the above that in assessing that the internal relocation option is available to the Applicants, the Board did not appear to have taken into account of the fact that A1 would be relocating with 3 small children away from her home district to somewhere which she may not have any previous experience or familial connection, and for the Board to find that it would not be unduly harsh for her to do so without any reference to any relevant COI or any inquiry as to issues such as financial or childcare assistance that she may require to support herself and her children for the relocation that it seems to me reasonably arguable that the Board had erred in law in its assessment and/or failed to make proper or sufficient inquiry before arriving at such assessment when clearly the interests of 3 small children are involved, never mind that they are all racially mixed illegitimate children born out of wedlock and outside of the Philippines.

23.  Which thus bring me to the complaints under Ground (3), and as submitted by Ms Souza, that for the consideration and assessment of non-refoulement claims of minor children, the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 at [34] held that the following principles shall apply:

(a)  Non-refoulement claims by children are separate claims from similar claims advanced by their parents or parent, and in principle the decision-makers should consider each claim by reference to the personal circumstances of each claimant;

(b)  Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as though they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of a parent’s claim that the children’s claim could be dismissed without further consideration of their personal situations; and

(c)  Ill-treatment which does not reach the level of persecution in the case of an adult may do so in the case of a child.

24.  Furthermore, in Re Jasvir Singh [2021] HKCA 53, the same constituted Court of Appeal also held that when dealing with a non-represented minor’s judicial review leave application to challenge the Board’s rejection of the non-refoulement claim, the court should do as follows:

“31. … the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non-refoulement claim has been properly considered by the board in a manner consistent with the above propositions. In so doing, the court should also consider on a case-by-case basis whether there exit 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 merits. In such a case, the court can dismiss his leave application notwithstanding that he had 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.”

25.  In applying these principles to the case of A2, A3 and A4, Ms Souza submits that there were plenty matters arising from A1’s oral and written evidence which gave rise to the following child-specific risks and therefore called for independent examination by the Board:

(a)  A1’s evidence about Big Brother Art’s plan to abduct A2 for ransom in both her NCF at §§14-15 as well as her oral evidence given during the appeal hearing and referred to in the Board’s Decision;

(b)  A2 – A4 were born of A1’s relationship with a Nigerian national in Hong Kong, and are therefore mixed-race children born out of wedlock as stated in both A1’s NCF and her oral evidence;

(c)  A1 had at the appeal hearing expressed concerns about the safety of herself and her children if they were to return to the Philippines as evidenced in the transcript.

26.  Ms Souza therefore submits that the Adjudicator had wrongly failed to consider and assess any of such risks relating to the children as stated above, and contrary to the guidance laid down in Fabio, the Board had therefore erred in:

(a)  wrongly assessed the Applicants’ claims as a composite claim, and as noted in the Decision, the Adjudicator upon having concluded that A1’s case was “purely hearsay and unreliable”, and that state protection would be available to her upon return to the Philippines, the Adjudicator then proceeded to dismiss all the Applicants’ claims on this basis without separate consideration of the children’s claims, of which the Adjudicator should have proceeded to at least consider those facts as stated above which are child-specific risks engaged for consideration;

(b)  failing to properly assess the issue of internal relocation, and the question of whether A1 would be able to safely relocate within the Philippines and support 3 young children, and instead the Adjudicator just broadly concluded without consideration of any COI that there was “no suggestion that Art has any influence away from [A1’s] own village”, and that it would therefore not be unduly harsh for her to return to the Philippines;

(c)  proceeded on the basis of an erroneous view that “As the [A2-A4] were born in Hong Kong, what happened in the Philippines in respect of her case did not concern them” (§24(i) of Decision) which is incorrect as A1’s evidence clearly indicated that the children would simply go where she goes.

27.  Ms Souza further submits that, by reason of the Applicants’ lack of legal representation before the Board, the Adjudicator ought to have adopted an appropriately child sensitive approach recommended by the UNHCR’s Guidelines on International Protection for Child Asylum Claims, 22 December 2009 as follows (A/25):

(a)  That alongside age, other characteristics of the child including “family background, class, caste, health, education and income level” which may increase the risk of harm and influence or exacerbate the type of persecutory conduct inflicted on the child (§12);

(b)  That child-specific rights include, but are not limited to, the right not to be separated from parents, protection from all forms of physical and mental violence, and a standard of living adequate for the child’s development (§13), and in particularly, “Children’s socio-economic needs are often more compelling than those of adults, particularly due to their dependency on adults and unique developmental needs” (§14);

(c)  That “Actions or threats that might not reach the threshold of persecution in the case of an adult may amount to persecution in the case of a child because of the mere fact that s/he is a child”, and hence the severity of the acts and their impact on the child must be properly examined with the appropriate threshold for persecution (§15);

(d)  That psychological harm is also a relevant factor to consider, as “Children are more likely to be distressed by hostile situations, to believe improbable threats, or to be emotionally affected by unfamiliar circumstances” (§16);

(e)  That a child’s sensitivity to acts that target close relatives, including the witnessing of violence, disappearance, or killing of a parent or other person may also support a well-founded fear in the child (§17); and

(f)  That the question of internal relocation must be informed by the child’s best interests, and with adequate consideration of their personal circumstances (§§53-57).

28.  On these bases Ms Souza submits that it is clear that the Adjudicator had failed to consider the claims of A2 – A4 separately, never mind properly or adequately, and simply dismissed their claims as one composite one based on A1’s claim only, and therefore erred in law in the assessment and determination of the Applicants’ claims.

29.  Having scrutinized the findings of the Adjudicator as noted above and the Decision of the Board as regard the Applicants’ claim, I agree that there are merits in the intended application of the Applicants for judicial review of the Board’s Decision on the basis of Ground (2) but confined to the assessment of internal relocation, and on Ground (3) as proposed by the Applicants, and thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) HKCFAR 676.

30.  In the premises, I accordingly extend time to the application, and grant leave to the Applicants to apply for judicial review of the Board’s Decision on the grounds stated above, and direct that they shall file an issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all relevant documents on the Board as respondent and the Director as interested party, with costs to be in the cause and with Legal Aid Taxation.

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