Estrada Camille and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 999/2024

[2025] HKCFI 5127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 999 of 2024

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 Applicants being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

1.  Leave for the applicants to apply for Judicial Review against the Board’s Decision 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 and 3^rd applicants’ application a nullity.

Observations for the Applicants:

THE APPLICATION

1.This case should be considered together with HCAL 3298 of 2019 because the applicants are the family members and the facts are the same. The 1^st applicant is the mother and guardian of the 2^nd applicant and the 3^rd applicant, who are twins, aged 3 years old. They are illegal immigrants. The mother overstayed in Hong Kong since 12 February 2013. She and her another daughter surrendered to the Immigration Department and lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director refused their claim. They had appealed to the Torture Claims Appeal Board (“the Board”). The Board dismissed their appeal. They applied to the High Court for leave for judicial review of the Board’s Decision. This Court had dismissed their application in HCAL 3298 of 2019 by a separate Form CALL-1.

2.The mother had given birth to the 2^nd and the 3^rd applicants in Hong Kong. The 2^nd and the 3^rd applicants had also lodged non-refoulement claim with the Director, with their mother as their guardian. The facts in support of their application are the same facts of their mother.

3.The applicants jointly apply for leave to apply for judicial review of the Decision dated 29 February 2024 of the Board’s Decision (“the Board’s Decision”). Their joint application relies upon the facts of the 1^st applicant in HCAL 3298 of 2019. For details, see the Board’s Decision for this case by hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL000999_2024_files/the_Board's_Decision.pdf.

4.The applicants were absent at the hearing on 15 October 2025. This Court will assume they abandoned their right to be heard and proceed to deal with their application on the papers.

The Director’s Decision

5.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”).

6.By way of the Notice of Decision dated 27 September 2023 (“the Director’s Decision”), the Director assessed the applicants’ claims jointly on all applicable grounds and dismissed their claims because their claims are unsubstantiated.

The Board’s Decision

7.The applicants appealed the Director’s Decision to the Board. On 7 February 2024, the Board conducted an oral hearing for their appeals. The mother and the grandmother had given oral evidence and answered the Board’s questions. [25]&[27]

8.The Board had considered the Board’s findings in HCAL 3298 of 2019. It further heard the mother’s submissions on specific issues related the 2^nd and the 3^rd applicants, in particular, that they would face discrimination as Muslim from the Catholic government. It had taken on board the decisions of the Court of Appeal in Fabio Arlyn Timogan and Ors v Evan Ruth Esq. Adjudicator of the Torture Claims Appeal Board/Non-Refouelment Claims Petition Office [2020] HKCA 971 and Re Siti Naisah & Ors [2020 HKCA 33. [31] & [32] It had made the findings below.

(1)  This Board saw no reason to reach any different conclusion to that reached by the previous Board. [38] & [41]

(2)  There was no basis to suggest that their enemy, Paolo would locate them or cause harm to them if they return to the Philippines. Their suggestions were speculative only. The Board also did not accept that the children would face discrimination because they are Muslims. [47]

(3)  The mother’s claim that her children would be at risk of being kidnapped and sold as slaves, and would be vulnerable to exploitation for child pornography and prostitution because they would have no family support and they would live in poverty is without basis. [48]

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

Application for leave to apply for judicial review

10.The applicants filed Form 86 on 26 June 2024 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.

11.In the 1st applicant’s affirmation in support of their application, the 1^st applicant deposed that the Board had not taken into consideration that her children’s father is a Hong Kong resident and they are in the course of applying for right of abode in Hong Kong.

DISCUSSION

12.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).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.Those reasons under paragraph 11 are not valid to challenge the Board’s Decision. If their applications for right of abode are successful, they may stay in Hong Kong with the consent of the Director, which is irrelevant to the Board’s Decision under this application.

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

DISPOSITION

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

17.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 and the 3^rd applicants’ application a nullity.

Dated the 9^th day of December 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