LUMAPAD JOCELYN ARIOLA AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2367/2019

[2025] HKCFI 1266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2367 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 27 June 2019 of the Torture Claims Appeal Board (“the Board’s Decision”). Their joint application relies upon the facts of the 1^st applicant.

2.  The applicants requested a hearing. However, they were absent at the hearing on 17 March 2025. I shall deal with their application on the papers.

3.  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

4.  The 1^st applicant, aged 34, is the mother and the guardian ad litem of the 2^nd applicant, her daughter, aged 7. The applicants are nationals of the Philippines. The 1^st applicant arrived in Hong Kong as a domestic helper since but when her contract was terminated, she re-entered Hong Kong as a visitor but did not depart and instead overstayed in Hong Kong since 14 June 2015. On 24 July 2015, the 1^st applicant surrendered to the Immigration Department.

5.  The 2^nd applicant was born in Hong Kong on 22 January 2018. Subsequently, the 1^st applicant lodged a non-refoulement claim for herself and on behalf of the 2^nd applicant on 31 March 2016 and 30 April 2018 respectively.

6.  The 1^st applicant’s claim was based on her fear of being harmed or killed by her husband because of her extra-marital affairs in the Philippines and she gave birth to a son with her partner. Her husband abused her by violence, using a knife at her neck and pointing a gun at her forehead. Her story is set out in paragraph 9 of the Notice of the Director dated 30 October 2018 (“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 the 1^st and 2^nd applicants’ claims jointly and dismissed their claims. In summary, the Director found that: there were no substantial grounds to believe that the claimed future risk of harm by the 1^st applicant’s husband and her family members was real and foreseeable, taking into account the intensity and frequency of past ill-treatment [14]; state protection was available [15]; and internal relocation alternatives were available and reasonable [16].

The Board’s Decision

9.  The applicants appealed the Director’s Decision to the Board. On 17 April 2019, the Board conducted an oral hearing for their appeals.

10.  Having considered the evidence, the Board was not satisfied that the applicants faced a real chance of serious harm or a real risk of significant harm [66]. Furthermore, the Board found that, on the available evidence, the 1^st applicant does have family networks and support who could assist her even with the embarrassment of having children out of wedlock, as the overall impression was that the 1^st applicant’s family had been and likely to continue to be genuinely supportive even if they may disapprove of what she had done [84]; and that state protection was available to protect women and children against domestic violence [54, 71-73, 95, 98]. In conclusion, the Board held the applicants’ claims failed under all applicable grounds.

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

Application for leave to apply for judicial review

12.  The applicants have filed Form 86 on 15 August 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In the 1^st applicant’s affidavit in support of her application, the 1^st applicant deposed that “[the Board] disregard my dangerous situation…” and exhibited the Board’s Decision. No valid grounds were put forth by the 1^st applicant in relation to 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.  The Board had considered the 2^nd applicant’s claim separately. See paragraphs 82-84.

18.  The 1^st applicant has not been able to raise any valid ground to challenge the Board’s Decision.

DISPOSITION

19.  I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their 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 2^nd applicant’s application a nullity.