GUNSAY JUDITH CASTRO AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1256/2020

[2026] HKCFI 366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1256 of 2020

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

Following;

1.   Leave for the Applicants to apply for Judicial Review be refused; and

2.   Non-compliance with Order 80, rule 2 of the RHC in these proceedings be treated as a mere irregularity without rendering the 2^nd applicant’s application a nullity.

Observations for the Applicants:

THE APPLICATION

1.  The 1^st applicant is the mother (“the mother”) of the 2^nd applicant, her son, aged 6 (“the son”).  They are illegal immigrants by reason that the mother worked as domestic help and she did not depart after termination of her employment contract.  She has given birth to the son.  

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 11 June 2020 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing their appeal against the Director’s Decision as mentioned below.  Their joint application relies upon the facts of the mother.

3.  The applicants were absent at the hearing on 12 November 2025.  I shall deal with their 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.  They are illegal immigrants.  The mother came to Hong Kong to work as a domestic helper on 28 April 2029.  She did not depart after termination of her employment contract.  She gave birth to the son.  The father of the son has disappeared.  She surrendered to the Immigration Department where she lodged a non-refoulement claim on the basis that, if refouled, she and her son may be harmed by her husband Rodolfo dela Cruz (“Rodolfo”) because she had given birth to the son with another man.  

6.  Details of the facts are set out in the Board’s Decision.  See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001256_2020_files/the_Board's_Decision.pdf

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 the applicants’ claims jointly on all applicable grounds and dismissed their claims on all applicable risks because it was unsubstantiated.

The Board’s Decision

9.  The applicants jointly appealed the Director’s Decision to the Board. On 10 March 2020, the Board conducted an oral hearing for their appeal.  The mother had given evidence and answered the Board’s questions.

10.  Having considered the evidence, the Board made the findings below.

(1)   Because of the gaps, inconsistencies and other problems with the evidence, the Board rejected the mother’s evidence. [120]

(2)   It would be unlikely that Rodolfo would harm the mother or the son as he had already known about the son and he and the mother had adopted an orphan child in the Philippines, he would probably accept the son as well. [121]-[122]

(3)   Rodolfo will not harm either the mother or the son. [126]

(4)   There is not a real risk that either of them would face any of the proscribed forms of harm should they return to the Philippines. [127]

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 22 June 2020 for leave to apply for judicial review of the Board’s Decision.  The applicants did not put forth any valid grounds in support of their application.

13.  In the mother’s affirmation in support of their application, the mother said that it is not safe for her and her son to return to the Philippines as her husband will be angry with them and may kill them.

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 see if there were any child-specific issues, which were not brought to the Board’s attention because of lack of legal representation for the minors, and to have separate consideration of the child specific issues as the minors are more liable to be subjected to the applicable risks than the parent.

17.  It is obvious that the Board did not consider the child’s situation separately.  It will be for the Court to consider whether under such circumstances, leave should be granted to the applicants to apply for judicial review of the Board’s Decision.  This Court will be guided by the decisions of the Court of Appeal.

18.  The Court of Appeal in Re: Jasvir Singh & Ors [2021] HKCA 53, 14 January 2021, Hon Lam VP and AU JA, 14 January 2021 further held:

“33. … 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.  The Court of Appeal in Re: Luu Thi Hoa & Others [2024] HKCA 174, Hon Kwan VP and Cheung JA, 27 February 2024 held:

“17. In the present case, the 3^rd applicant’s claim is premised fundamentally and entirely on the 1^st applicant’s claim. In light of the Board’s rejection of the 1^st applicant’s evidence, the factual foundation of his claim failed. It follows from the rejection of the 1^st applicant’s claim that there is no basis to support the 3^rd applicant’s claim. Further, the Board had found that no threat was made to kidnap the children.

18.    We also agree with the Judge that on the materials available to the Court, they do not disclose any possible concern that there may be non refoulement grounds that relate specifically and solely to the 3^rd applicant.  In the circumstances, although the Board did not appear to have separately considered the 3^rd applicant’s claim (other than on the issue of kidnapping), we do not consider, having regard to the facts of this case, there is any basis to judicially review the Board’s decision.”  

20.  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 1^st applicant has not identified any other risks of harm that the 2^nd 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 2^nd 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 2^nd applicant’s intended judicial review reasonably arguable or any basis to disturb the Judge’s refusal of leave to apply for judicial review. ”

21.  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 1^st applicant has not identified any other risks of harm that the 2^nd 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 2^nd 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 2^nd applicant’s intended judicial review reasonably arguable or any basis to disturb the Judge’s refusal of leave to apply for judicial review.”

22.  The mother’s submissions in paragraph 13 are not valid to challenge the Board’s Decision, which has found against her.

23.  As to the son, the mother has not raised any concern of potential non‑refoulement grounds relating to the son, but which had not been advanced to the Board or considered by it because of lack of legal representation on their behalf before the Board.  Nor has she raised any such child specific issue before this Court for consideration.

24.  The son is a national of the Philippines and he can return to the Philippines with his mother.  I cannot see any real risk that he may be subjected to any harm if he returns to the Philippines.

25.  The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.

DISPOSITION

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

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

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