Case Document

100%Judiciary

HCAL 3326/2019

[2026] HKCFI 183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3326 of 2019

BETWEEN
	Sonbise Emy Rose Tamparong	1^st Applicant
	Sonbise Roz Joemar	2^nd Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative
		Interested Party

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 oral submissions by the Applicants in open court;

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

1. Leave for the Applicants to apply for Judicial Review be refused; and

2. Non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2th Applicant’s application a nullity.

Observations for the Applicant:

THE APPLICATION

1.The 1^st applicant is the mother (“the mother”) of the 2^nd applicant, her son, aged 11 (“the son”). They are illegal immigrants. The mother gave birth to her son in Hong Kong.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 18 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision”). Their joint application relies upon the facts of the mother.

3.The applicants appeared before the Court on 24 December 2025.

4.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

5.The applicants are nationals of the Philippines.

6.The applicants lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed or killed by some strangers who were opposed to her charitable work and activities organized by a charitable organization Save the Children (“SC”), which was to help street children. She joined SC when she studied in the University as a volunteer.

7.Details of the facts are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003326_2019_files/the_Board's_Decision.pdf

The Director’s Decision

8.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”).

9.By way of the Director’s Decision dated 27 February 2019 (“the Director’s Decision), the Director assessed the applicants’ claims jointly on all applicable grounds and dismissed their claims on all applicable risks because it was unsubstantiated.

The Board’s Decision

10.The applicants appealed the Director’s Decision to the Board. On 15 August 2019, the Board conducted an oral hearing for their appeals. The mother had given evidence and answered the Board’s questions.

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

(1)  The mother’s evidence was not credible and her account was rejected as untruthful. [23] See examples at [24]-[27] & [41]

(2)  The Board did not accept the mother’s assertion that she was an active member volunteer of SC as she was unable to give objective or reliable evidence on it. [34]

(3)  The Board did not accept the mother’s account about the telephone threats and the attack incident. [35]

(4)  The Board did not accept that the mother would be ill-treated or at risk of arbitrary deprivation of life if she returns to the Philippines. [41] & [42]

(5)  State protection will be available to them if they return to the Philippines. [67], [69], [72] & [93]

12.For the reasons above, the Board dismissed their appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

13.The applicants filed Form 86 on 7 November 2019 for leave to apply for judicial review of the Board’s Decision.

14.In support of their application, the mother has raised no ground to challenge the Board’s Decision.

DISCUSSION

15.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).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, I asked the mother if there was any child specific issue that she wanted me to take into consideration for the son. The mother said he would be subjected to the same risks as she would be subjected to.

17.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 held that in such circumstances, it is incumbent upon the Board to see if there were any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation for the minors, and to have separate consideration of the child specific issues as the minors are more venerable to the applicable risks than the parent.

18.The Court of Appeal in Re: Jasvir Singh & Ors [2021]HKCA 53 further held:

“33. … if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor specific non refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”

19.It is obvious that the Board did not consider the child’s situation separately. It will be for the Court to consider if such conduct will cause any injustice to the child or give rise to any reasons for judicial review of the Board’s Decision.

20.This is the reason that this Court had asked the mother about child specific issues of her son.

21.The Court of Appeal in Re Penol, Sally BArsolaso & Iiggs Paul Derrick [2024] HKCA 790, Hon Chu VP and Barma JA, 22 August 2024 held:

“27. Importantly, both before the Board and in the applications before the Judge and in the present application, the 1st applicant has not identified any other risks of harm that the 2^nd applicant [the child] may separately face in the Philippines.

28. On the papers available to this Court, we also do not see any material that may give rise to a concern of potential non-refoulement grounds relating specifically to the 2^nd applicant but which had not been advanced to the Board or considered by it because of the lack of legal representation on his behalf before the Board.

29. In the premises, we do not find the 2^nd applicant’s intended judicial review reasonably arguable or any basis to disturb the Judge’s refusal of leave to apply for judicial review.”

22.The mother has not raised any concern of potential non-refoulement grounds relating to the child, but which had not been advanced to the Board or considered by it because of lack of legal representation on their behalf before the Board. Therefore, I consider that the applicants do not have any reasonable prospect of success in their intended judicial review of the Board’s Decision.

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

DISPOSITION

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

25.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the son’s application a nullity.

Dated the 14^th day of January 2026

(Allen LEE)
for Registrar, High Court

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 the Applicant’s solicitors must:
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)).		Sent to the Applicant on 14/1/2026 Sonbise Emy Rose Tamparong Sonbise Roz Joemar Applicant’s ref. no: Nil.		Sent 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 14/1/2026 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 15682/19/3/47/F1034, USM 15683/19/3/48/F1035 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 5166-7/18 (Formerly RBCZ 10947-8/18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)