Belleza Ma Shiela Grande v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2826/2019

[2025] HKCFI 3862

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2826 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 the Applicant in open court;

Order by Deputy High Court Judge Levy:

1.   Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

2.   The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Observations for the Applicant:

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 25 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 29 July 2019 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 28 February 2018 (“Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 5 June 2025.  The applicant attended the hearing in person.  After having heard from her, this court informed her that the decision would be reserved, and be sent to her updated address.

Background

3.The background as taken from the Director’s Decision and the Board’s Decision can be briefly stated as follows.

4.The applicant was born in Bacolod City, Negros Occidental, the Philippines, to an American father and Philippine mother.  When she was three years old she moved with her family to the United States in 1972 and lived there until 1985 when her parents brought her to Singapore and introduced her to their friend Chong Wei Mei, Fumi (“Fumi”).  Her parents left her in Fumi’s care in Singapore until 1992 when the applicant returned to the United States to complete her bachelor’s degree studies.  The applicant speaks English only.  She does not speak Tagalog (or any other indigenous language in the Philippines).

5.In 1996, with Fumi’s help, the applicant began working as a domestic helper in Hong Kong.  She completed her last employment contract in 2013 and was only permitted to remain in Hong Kong until 11 March 2013.  However, she did not depart, and overstayed.  On 28 July 2015, the applicant was convicted of theft and breach of condition of stay, and sentenced to 1 month and 1 week’s imprisonment.  The applicant raised her non-refoulement claim on 3 August 2015.

6.The applicant’s claim was considered under all applicable grounds i.e. risk of torture^[1], BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4] under the USM.^[5]  The claim was based on a fear that if refouled to the Philippines, she would be harmed or killed by those who murdered her parents and brother.  She was informed by her parents’ neighbours that her parents were killed due to their outstanding debts.

7.According to the applicant, both her parents worked for the United Nations.  In 2005, her parents retired from their employment, and moved back to Bacolod City, where they bought a piece of land with the help of her father’s friend.  Her father gave the applicant’s telephone number to this friend.

8.Subsequently, in 2008 when she was employed by Fumi, the applicant decided to travel to the Philippines to join her parents.  Fumi and her daughter Clara accompanied her to Bacolod City.  On 25 September 2008, when they arrived at her parents’ home, it was in a total mess and a crowd was assembled in front of the house. The neighbours told them to go to the hospital.  When the applicant, Fumi and Clara arrived at the hospital, the applicant’s parents and brother had already died from gun shot wounds.  The applicant was very scared and unable to speak or move.  She did not report the case to the police because she had no idea what had happened to her family, and because she did not speak the common language in the Philippines.

9.The parents’ neighbours warned the applicant not to stay at her parents’ home lest she would suffer the same fate.  The applicant was told that her parents were killed due to their outstanding debts.  However, her parents had never told her that they had ever borrowed money.

10.Fumi and Clara decided to leave the Philippines immediately.  As her family had died and she did not know anyone in the Philippines, the applicant did not feel safe to stay behind.  Thus, she decided to leave with them.  The three of them departed the Philippines on 27 September 2008 and returned to Hong Kong. 

11.After her return to Hong Kong, the applicant received telephone calls from strangers in the Philippines demanding repayment of money, and threatening to kill her if she should return to the Philippines.  She believed that the callers were the ones who killed her family because she had not given her telephone number to anyone in the Philippines.  The threatening calls ceased when she changed her telephone number in 2011.  In early 2013, Fumi and Clara left Hong Kong without telling the applicant and she has since lost contact with them.

12.On 18 April 2016, the applicant was knocked down by a car near Mongkok Railway Station and became unconscious.  She was in a coma for 9 days and sustained fractures on her body.  When she woke up from the coma, she was told that she was at Queen Elizabeth Hospital.  The applicant did not fully recover from the injuries until 23 September 2017.  She believes that this incident was related to her parents’ death.

13.In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds.  Hence, the applicant’s appeal to the Board against the Director’s Decision.

14.On 21 May 2019, the applicant attended a hearing before the Board.  At the Board hearing, the Board clarified certain matters with her.  She reiterated to the Board that she knew no one in the Philippines.  She also told the Board that she had lost her passport and other identity documents. She therefore would have difficulty to prove that her father was a US citizen, and that she was a US citizen.

15.The Board found that the applicant’s evidence that her parents owed debts and that they and her brother were killed due to her parents failing to repay debts was “hearsay evidence”.  Moreover, the Board pointed out that since 2011, she had received no further contact from any strangers demanding repayment of money.  As for the applicant’s accident in Mongkok in 2016, the Board took the view that it was speculative as to whether the driver was trying to kill her.  Thus, the Board found that there was no real risk of harm.  The Board also found that internal relocation would be viable.  Thus, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

16.As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

The applicant’s grounds

17.In her Form 86 and supporting affirmation, the applicant did not raise any grounds for judicial review.

18.At the hearing, this court asked the applicant whether she had any grounds she wished to submit in support of the Leave Application.  The applicant stated that she could not go back to the Philippines because her parents were no longer there.  She saw the parents and the brother having been shot. She said that she could not speak any of the Pilipino languages.

The applicant’s nationality status

19.It was the applicant’s case that she lost her passport.  In the Director’s Decision, there was no verification or confirmation of what passport(s) the applicant held when she was employed in Hong Kong.  Instead, at [35] of the Director’s Decision, the Director merely accepted that she was a national of the Philippines and outside her country of nationality.

20.Similarly, at [60] of the Board’s Decision, the Board concluded, without objective proof or independent confirmation, that it had “no doubt that the [applicant] is a Philippines national and is outside her country of nationality”.

21.It is trite that a decision-maker needs to establish the true legal position of a claimant’s nationality and consider it: Dian Lestari v Torture Claims Appeal Board [2025] HKCA 39 (Chow JA & Cheng J).  A claimant’s statement as to his/her own nationality is insufficient.  The decision-maker should not make an assumption but make a finding on the true legal position of a claimant’s nationality.  Before an actual finding on nationality can be made, the decision‑maker is required to investigate with reference to official documents, or adduce expert evidence as to the nationality law of the relevant country.  See Re Novi Azizah, [2021] HKCA 1910 (Kwan VP & Yuen JA) at [27] and Re Liana Risdianti, [2022] HKCA 1058 (G Lam JA & Barnes J) at [26] – [28]

22.In the present case, the Board seems to have accepted the applicant’s statement as to her claimed Philippine nationality without making any independent verification, and without making a finding on nationality with reference to any official materials.  The Board accepted the applicant’s statement as to her claimed Philippine nationality without proof despite the applicant’s claim that she was an American citizenship.

23.It is trite that claimants cannot legally be refouled or repatriated to a country whose nationality they do not have.  The applicant was lawfully employed as a domestic helper in Hong Kong until early 2013.  The Director should have a record of what passport(s) she held when she still had a valid employment visa.

24.In the circumstances, there is no finding on the applicant’s nationality. Arguably, there is no valid legal basis for the Board’s risk assessment in respect of potential refoulement to the Philippines.  Thus, it is reasonably arguable that the Board has failed to apply the highest standard of fairness by making a proper investigation as to the applicant’s nationality.

Assessment of risk of harm

25.The Board rejected the applicant’s claim and found that there was no real risk of harm on the basis that the applicant’s evidence was speculative. The Board also considered it speculative as to whether the driver whose vehicle hit and injured the applicant in Mongkok in April 2016 was trying to kill her.

26.In rejecting the applicant’s claim of risk of harm, the Board dismissed the applicant’s claim about the traffic incident in Mongkok in April 2016 as having connection with people who wanted to harm her as mere speculation.  The Board surmised (at [52] of the Board’s Decision) that it was “sure that the police of Hong Kong had done thorough investigation into the cause of the accident and it’s apparent that there is simply no evidence support the [applicant]’s allegation that the driver was trying to kill her”.

27.It would appear that the Board here had erroneously applied its subjective common sense by assuming that the police had done proper investigation. The applying of a decision-maker’s own common sense in non-refoulement claims has been disapproved in ST v Betty Kwan[6] (which was later followed in TI v Winston Leung[7]).  A decision‑maker is not entitled to make his or her own assumptions, conjecture or speculations as to what ought to have happened: TI (supra.).  The Board also failed to consider whether the applicant’s injuries could constitute cruel, inhuman or degrading treatment or punishment.

28.The Board also seems to have failed to consider whether the threatening telephone calls (including death threats) and demands to repay money may resume in the event of refoulement to the Philippines.

29.Thus, there was no meaningful assessment of this portion of the applicant’s evidence.  It is therefore reasonably arguable that the Board’s Decision is tainted by an error of law, procedural unfairness or irrationality, and fails to meet the required high standards of fairness

State protection and internal relocation

30.The Board made no finding as to state protection, though at [53] of the Board’s Decision when discussing on torture risk, the Board commented on the police as follows:

“…While there is some support of the Appellant’s claim from the country of origin information (“COI”) of Philippines that the police were corrupt and inefficient, there is also some other information in the COI of Philippines suggesting that reforms have been on-going and that the Philippines has taken practical steps to improve the police’s effectiveness and to monitor their conduct.”

31.However, the Board’s Decision made no references to any COI about the police or about state protection in the Philippines.  Thus, it would not be apparent to an objective reader of the Board’s Decision as to what COI the Board had properly considered.

32.In A, B, C, D and E v Torture Claims Appeal Board, [2024] HKCA 471 at [33] – [34], the Court of Appeal held that a Board is required to demonstrate that it had conducted a proper and independent assessment of COI. In that case, the court found that the Board had failed to do so, because the Board made no mention or reference to the additional COI submitted by the appellant claimants. 

33.Since the Board made no references to any COI about the police or about state protection in the Philippines, the Board has arguably failed to comply with its duty in demonstrating that it had conducted a proper and independent assessment of COI.  Thus, the Board’s Decision is arguably tainted by procedural unfairness.

34.Similarly, the Board’s conclusion that internal relocation would be viable was reached without citing or referring to any COI.  Importantly for the present case.  When concluding that internal relocation would be viable, the Board failed to take into account of all the applicant’s relevant risk factors and personal circumstances.  The Board did not consider whether the fact that the applicant did not speak Tagalog or know anyone in the Philippines it would be unduly harsh for her to relocate.  The Board’s conclusion on internal relocation is therefore arguably unreasonable and tainted by procedural unfairness.

35.For the above reasons, it seems at least reasonably arguable that the Board’s Decision is wrong at law, tainted by procedural unfairness and that it does not meet the required high standards of fairness.

Conclusion

36.In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

37.Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that she shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Order

38.Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

39.The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Dated the 29^th day of August 2025

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