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HCAL 3731/2019
[2026] HKCFI 1727
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3731 OF 2019
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BETWEEN
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Serrano Marina Corsino |
1st Applicant |
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Mohammed Rizwan Zhian Khan (a minor) |
2nd Applicant |
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by Serrano Marina Corsino, his next friend |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the 2nd applicant be amended to “Mohammed Rizwan Zhian Khan (a minor) by Serrano Marina Corsino, his next friend”, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the name of the putative interested party be amended to “Director of Immigration”.
2. The 1st applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 31 October 2019 be dismissed.
3. Leave granted to the 2nd applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 31 October 2019.
4. The 2nd applicant is directed to issue an originating summons for the intended judicial review on or before 8 April 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.
Observations for the applicants:
The Leave Application
1. By way of Form 86 dated and filed on 16 December 2019, the applicants applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 31 October 2019 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003731_2019_files/the_Board's_Decision.pdf
2. The Board found that the applicants’ claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicants’ appeals/petitions and confirmed the decision of the Director of Immigration (“the Director”) dated 31 December 2018, which rejected their non-refoulement claims.
Amendments
3. The 2nd applicant is a minor and represented by his mother, ie the 1st applicant, as his next friend. Thus, the 2nd applicant’s name should be stated in Form 86 as “Mohammed Rizwan Zhian Khan (a minor) by Serrano Marina Corsino, his next friend”.
4. In Form 86, the applicants named “Jane Curzon LO MEMBER OF THE TORTURE CLAIMS APPEAL BOARD” as the putative respondent and the Board as the putative interested party, when the Board should be the putative respondent and the Director should be the putative interested party. Ms Lo just made the Board’s Decision in her capacity as a member of the Board and hence naming the Board as the putative respondent is sufficient.
5. Thus, on this court’s own motion, the name of the 2nd applicant is amended to “Mohammed Rizwan Zhian Khan (a minor) by Serrano Marina Corsino, his next friend”, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and the name of the putative interested party is amended to “Director of Immigration”.
The applicants’ case
6. It is not necessary for this court to repeat the details of the applicants’ case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
7. In sum, the 1st applicant claimed for non-refoulement protection because if refouled to the Philippines, she and the 2nd applicant would both be killed by her husband Wilmar Serrano (“Wilmar”), as she gave birth to the 2nd applicant, the son of another man.
8. The 2nd applicant is the 1st applicant’s son, born in Hong Kong on 6 April 2018. The 2nd applicant’s father is an Indian Muslim and also a non-refoulement claimant himself. The 1st applicant met him in Hong Kong in or around May 2016 and they had been cohabiting since then. The 1st applicant also feared that she would face discrimination upon her return to the Philippines as she had converted to Muslim.
Oral hearing
9. The applicants requested for an oral hearing of the Leave Application and their case was heard on 26 February 2026.
10. The 2nd applicant is a minor and was represented by his mother, ie the 1st applicant, at the hearing. However, he should have legal representation under Order 80, rule 2 of the Rules of High Court. The 1st applicant confirmed at the hearing that the application for legal aid for the 2nd applicant was refused, and she decided not to engage any private lawyer to represent the 2nd applicant in the present proceedings.
11. Since the 2nd applicant did not have any legal representation, this was an irregularity under the rules as aforesaid. However, this court was of the view that the case should proceed and the 2nd applicant would not be prejudiced. The irregularity was hence waived.
12. When this court asked the applicants for the grounds of their intended judicial review, the 1st applicant merely repeated the basis of their non-refoulement claim that her husband was still hunting her and the 2nd applicant. She added that her husband had threatened to kill her mother if she went back to the Philippines.
13. The 1st applicant also said that she could not go back to the Philippines alone because no one would take care of the 2nd applicant if she were sent back. She wanted to stay in Hong Kong so that the 2nd applicant could receive education here.
14. As to the grounds for the 2nd applicant’s intended judicial review, the 1st applicant only said that she wanted the 2nd applicant to be able to go to school in Hong Kong and she was unable to bring him home.
Grounds for judicial review
15. The applicants are required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
16. The applicants did not advance any ground for their intended judicial review in Form 86, nor in the 1st applicant’s supporting affirmation dated 16 December 2019.
17. What the 1st applicant said at the oral hearing were not valid grounds for judicial review either. The threats from her husband had already been duly assessed but rejected by the Board. The 2nd applicant’s need to remain in Hong Kong for education cannot be a valid ground for his intended judicial review.
Discussion
18. This court will first deal with the 2nd applicant’s Leave Application.
19. The 2nd applicant was only about one year old when his case was heard by the Board on 24 June 2019. He was not legally represented before the Board and was only represented by his mother, ie the 1st applicant, who was absent at the Board’s hearing. Thus, the 2nd applicant’s claim and any minor-specific fears and needs concerning him were not properly presented to the Board.
20. As held in the case of Fabio Arlyn Timogan[1], “Children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented before the Board or to make meaningful submissions on their own behalf” and “When one is dealing with children claimants of tender age, serious consideration should be given to have a lawyer assigned by the Duty Lawyer Scheme to represent the children in the Board hearing notwithstanding the rejection of the claims by the Director”.
21. Thus, the lack of proper legal representation for the 2nd applicant when his case was assessed by the Board could have prejudiced him.
22. Moreover, this court notes that the Board rejected the 2nd applicant’s claim for the reasons that:-
(1) the level of risk of the 2nd applicant being subject to ill-treatment or death at the hands of Wilmar upon refoulement was low;
(2) the Philippines Government was able and willing to protect the applicants on their return;
(3) The applicants could relocate in the Philippines should the 1st applicant continue to be fearful of returning to her home area.
23. However, it seems that the Board did not consider that the 2nd applicant was actually born out of wedlock and is of mixed ethnicity.
24. There was no indication that the Board had ever considered country information regarding discrimination to children born out of wedlock and/or of mixed ethnicity in the Philippines. The Board had only considered country of origin information (“COI”) showing adequate state protection for single mothers with young children, which was not really relevant to the 2nd applicant’s situation when he was born out of wedlock and of mixed ethnicity, and could be the target of discrimination upon refoulement. Moreover, the 2nd applicant might also face discrimination for being a Muslim, just like what was feared by the 1st applicant.
25. It therefore appears that the Board did not address the issues specific to the 2nd applicant’s fears and needs, if the 2nd applicant were to be returned and/or relocated with the 1st applicant. The Board’s conclusion that the 2nd applicant would not face a genuine and substantial risk of being subjected to any of the proscribed forms of harm may not be well-founded.
26. For the reasons aforesaid, this court is of the view that there are reasonably arguable grounds in respect of the 2nd applicant’s case, and leave should be granted to the 2nd applicant to apply for judicial review in respect of the Board’s Decision concerning his own case.
27. In respect of the 1st applicant’s case, her danger from Wilmar had been duly assessed but rejected by the Board. If she intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.
28. As said, the 1st applicant did not put forward any grounds for her own intended judicial review. She only mentioned at the oral hearing before this court that her husband was still hunting her, and that she wanted to stay in Hong Kong to take care of the 2nd applicant. These, however, do not constitute any valid grounds to challenge the Board’s Decision.
29. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).
30. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the 1st applicant for her own intended judicial review.
31. The 1st applicant was absent at the Board’s hearing, which was held on 24 June 2019. She did not respond to the Board’s letter warning her that if she did not submit any written explanation for the applicants’ absence within seven days, the Board would determine their appeals/petitions in their absence. The Board did not receive any explanation from her and hence proceeded to determine the applicants’ appeals/petitions based on all the available evidence.
32. As can be seen from the Board’s Decision, the Board had considered the 1st applicant’s fear of being harmed or killed by Wilmar. The Board found that the 1st applicant had failed to show why Wilmar would want to harm or kill her, nor to establish that Wilmar had threatened to harm her or had done anything to threaten her wellbeing. Since Wilmar’s alleged enmity was the only danger for the 1st applicant on her return to the Philippines, there was no objective reason for the 1st applicant to fear for her wellbeing if she were to be refouled.
33. Significantly, the Board found the information provided by the 1st applicant suggested that Wilmar had already deserted the 1st applicant years ago and there was no reason to suspect that Wilmar cared about the 1st applicant having a relationship with another man and giving birth to the 2nd applicant.
34. On the issue of religious discrimination, the Board noted that the 1st applicant accepted that she had never had such experience of religious discrimination, even when she visited the Philippines in April 2017. The Board also found from COI that the Philippines Government had made progress on alleviating friction between different religious groups.
35. Moreover, the Board found that the Philippines Government was able and willing to protect the applicants on their return, and there were reliable COI materials showing adequate protection for single mothers and young children. The Philippine National Police maintained a women and children’s unit in more than 1800 police stations throughout the country with more than 1900 help desks to deal with abuse cases.
36. As to the viability of internal relocation, the Board considered that the applicants could relocate in the Philippines should the 1st applicant continued to be fearful of returning to her home area. The Board considered that it would not be unduly harsh for the applicants to relocate to Metro Manila where there was an increasing number of Muslims migrating.
37. Given the above findings, the Board did not accept that the 1st applicant would face a genuine and substantial risk of any of the proscribed forms of harm under the USM upon her return to the Philippines. Thus, the Board rejected the 1st applicant’s claim for non-refoulement protection on all the applicable grounds.
38. This court finds no flaw in the Board’s findings on the 1st applicant’s case and its conclusion that the 1st applicant was not at risk of any of the proscribed forms of harm from Wilmar under the USM. The Board had also addressed the 1st applicant’s fear of religious discrimination. The Board found that the applicant had never faced discrimination as a Muslim when she returned to the Philippines in the past, the Philippines Government had made progress on alleviating friction between different religious groups, and she could relocate to Metro Manila where an increasing number of Muslims was migrating there.
39. It seems that the Board did not address the issue of reasonableness or assess any hardship the applicants, especially the 2nd applicant, might face if they were to be relocated. However, the Board had found, on the facts as submitted, that the 1st applicant’s risk from Wilmar was low. There was no element of state acquiescence in the 1st applicant’s feared treatment from Wilmar, and state protection in respect of single mothers like the 1st applicant was available.
40. It is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicants have established that they qualify as refugees pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicants have established a real risk of persecution in their home area (see Gardi v SSHD [2002] 1 WLR 2755).
41. As it is the Board’s finding that the 1st applicant had failed to establish that there was a real chance that she would face persecution for one of the Convention reasons, it is actually not necessary for the Board to consider internal relocation for the 1st applicant.
42. Hence, even if the 1st applicant could successfully challenge the Board’s finding on the viability of her internal relocation, her claim for non-refoulement protection still would not succeed. As aforesaid, it was in fact not necessary for the Board to consider the issue of internal relocation as far as the 1st applicant is concerned.
43. The 1st applicant’s claim for non-refoulement protection is doomed to fail. This court therefore considers it pointless to grant leave to the 1st applicant for judicial review in respect of the Board’s Decision only on the ground concerning internal relocation.
44. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the 1st applicant has failed to establish such a claim in respect of her own claim and hence leave must be refused regarding her own application.
Conclusion
45. For reasons aforesaid, the Leave Application in respect of the 1st applicant’s application is dismissed. Leave is granted to the 2nd applicant to apply for judicial review in respect of the Board’s Decision.
46. The 2nd applicant is directed to issue an originating summons for the intended judicial review on or before 8 April 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.
Dated the 25th day of March 2026
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( Teresa NG )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 25 March 2026
Applicant’s ref. no:
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 25 March 2026
Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15307/19/1/180/F993
USM 15308/19/1/181/F994
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 5105/18 (formerly RBCZ/10328/18) (principal : mother)
QA T/C 5106/18 (formerly RBCZ/10883/18) (son)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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