Mazhar Monina Estrada v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3298/2019

[2025] HKCFI 5118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3298 of 2019

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:

Leave to apply for Judicial Review be refused.

Observations for the Applicants:

THE APPLICATION

1.The applicants are mother and daughter. The daughter was aged 21 when she appeared before the Torture Claims Appeal Board (“the Board”) and is now aged 37. They are illegal immigrants because they overstayed in Hong Kong since 12 February 2013. They surrendered to the Immigration Department and lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director refused their claim and they appealed to the Board.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 11 October 2019 of the Board’s Decision (“the Board’s Decision”). Their joint application relies upon the facts of the 1^st applicant.

3.The applicants were absent appeared before the Court on 15 October 2025. I shall deal with their application on the papers.

The applicants

4.The applicants are nationals of the Philippines.

5.The applicants lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed or killed by their enemy, a man called Paolo, who had raped the mother’s another daughter in the Philippines. The mother had lodged a complaint with the police. Paolo had threatened her to withdraw the complaint or something bad might happen to her and her daughter. The mother also discovered that there were hooded people around the place where she lived. She was afraid and had to flee her country for Hong Kong.

6.Details of the facts as the 1^st applicant alleged are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003298_2019_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 Notice of Decision dated 14 November 2017 (“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

9.The applicants appealed the Director’s Decision to the Board. On 5 June 2018, the Board conducted an oral hearing for their appeals. The mother had given oral evidence and answered the Board’s questions.

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

(1)  There was no evidence to suggest that the mother or her daughter would be at any risk if they were to return to the Philippines. [52]

(2)  Those matters the applicants complained do not engage any of the applicable risks. [54]

(3)  Even if there were threats, the applicants may relocate away from their previous home. [56]

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 5 November 2019 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 1^st applicant’s affirmation in support of their application, the 1^st applicant deposed that she was raped by her father when she was a child and this experience is devastating for her life. The threats and the hooded people had imposed fear on her and her daughters.

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.Those reasons under paragraph 13 are personal feelings to the mother and are not valid to challenge the Board’s Decision.

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

DISPOSITION

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

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