ARCARTE JOVENEY BRUAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3202/2019

[2025] HKCFI 2823

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3202 of 2019

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

Following;

	consideration of documents only;       or
	consideration of documents and Applicant being present in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant, aged 53, a mother of 2 children. They made non-refoulement claim before the Director of Immigration, and upon refusal, they appealed to the Torture Claims Appeal Board (“the Board”). Her children are of age, aged 20 and 22 respectively by now. They are not parties to this action. I shall only deal with the mother’s application only.

2.  The applicant applies for leave to apply for judicial review of the Decision dated 19 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), by which the Board dismissed her appeal against the Notice of Decision of the Director of Immigration dated 21 February 2018 (“the Director’s Decision”)

3.  The applicant appeared before the Court on 30 May 2025 and 25 July 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 applicant

5.  The applicant is a national of the Philippines. She last arrived in Hong Kong as a domestic helper since 1997 but when her contract was prematurely terminated, she did not depart and overstayed in Hong Kong since 15 November 2011.

6.  The applicant’s claim is based on her fear of being harmed or killed by her husband.

7.  According to the applicant, she was assaulted by her husband daily by slapping, pushing, and grabbing her arm, and there was one incident where the husband was drunk and assaulted her while she was pregnant. Details of her claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003202_2019_files/the_Board's_Decision.pdf.

The Director’s Decision

8.  The Director considered the applicant’s 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 the applicant’s claim on all applicable grounds and dismissed her claim.

The Board’s Decision

10.  The applicant and her children appealed the Director’s Decision to the Board. The Board conducted an oral hearing for their appeal on 21 May 2019. At the hearing, only the 1^st applicant was present, and the Board considered the case of both the 1^st applicant and the children [24-61]. In particular, the Board considered that the children were fathered by a Sri Lankan Muslim and that the children were Muslim. There was no evidence before the Board that they faced a real chance of harm with the mother being Catholic [60].

11.  Having considered the evidence, the Board was not persuaded that the applicant and her children would face a real chance of harm of any type in the Philippines in the reasonably foreseeable future [61]. In conclusion, the Board held that the applicants’ claim failed under all applicable grounds. It therefore dismissed their appeal and confirmed the Director’s Decision.

12.  Since the children are of age and are not parties to this action, I shall not further consider the minor’s issues in this case.

Application for leave to apply for judicial review

13.  The applicant filed Form 86 on 28 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant said that the Board’s Decision is Wednesbury unreasonable to hold that state protection will be available and internal relocation viable. They are general assertions without any evidence in support.

14.  In the applicant’s affidavit in support of her application, the applicant did not raise any other 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 applicant said that the Board’s decisions were not wrong.

17.  Those reasons under paragraph 13 are not valid to challenge the Board’s Decision.

18.  The applicant therefore fails to show that there is any realistic prospect of success in her proposed judicial review.

DISPOSITION

19.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her 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