Re Castillote Jovelyn Soriano and Another

CACV 279/2025, [2026] HKCA 621

On Appeal From [2025] HKCFI 1267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 279 OF 2025

(ON APPEAL FROM HCAL NO 2374 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.This is the applicants’ appeal[1] against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 29 April 2025 ([2025] HKCFI 1267)  (“the Leave Decision”)  refusing their application for leave to apply for judicial review (“the Leave Application”)  against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 8 August 2019 (“the Board’s Decision”)[2], whereby the Board dismissed their appeal against the decision of the Director of Immigration (“the Director”)  dated 12 May 2017, refusing their non-refoulement claim under all applicable grounds including BOR2 risk[3].

2.The appeal was listed to be heard on 16 March 2026.  The applicants were directed to lodge two sets of skeleton argument on or before 16 February 2026 and were warned that if they failed to do so, they would be deemed to have waived their right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  The directions and the warning were sent to the applicants by post in the Notice of Hearing dated 5 February 2026 which were not returned undelivered by the post office.  However, the applicants did not lodge any skeleton argument in support of their appeal.

3.As the applicants failed to lodge their skeleton argument by the stipulated time, the hearing was thus vacated on 3 March 2026 and we proceeded to consider their appeal on paper.

4.The applicants’ background, the basis of their claim and arguments advanced before the Board as well as the Board’s reasons for rejecting their appeal are all set out in the Board’s Decision: see [7] - [14] of the Leave Decision.  The Judge also sets out their intended grounds of appeal as well as his reasons for refusing the Leave Application in detail: see [5] - [23] of the Leave Decision.  We will not repeat the details herein.

5.By the Notice of Appeal filed on 12 May 2025, the applicants stated:

“1. Errors in law: the Court of First Instance misapplied legal principles related to the non-refoulement protection including Article 3 of the HKBOR and Article 33 of the 1951 Refugee Convention.

2. Error in Fact: The Court failed to properly assess regarding the risk of persecution or harm I may be face if I return to my country I put in argue that the court overlooked the fact.

3. Procedural Impropriety: The TCAB (Torture Claims Appeal board and the Director’s failed to consider my fear that why I would not return to my country because I fear for my and my daughter life.” (sic)

6.By the directions made by the Registrar of Civil Appeals on 13 May 2025, the applicants have been reminded that a minor claimant should act by a next friend and must act by a solicitor and that steps should be taken on behalf of the 2^nd applicant to comply with Order 80, rule 2 of the Rules of the High Court (Cap 4A)  (“the RHC”)  and the applicants have also been reminded that they may apply for legal aid for the conduct of the 2^nd applicant’s appeal.  Notwithstanding being reminded, nothing has been done by the applicants.

DISCUSSION

7.The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

8.In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)].

9.The court’s basic approach in relation to the assessment of a minor’s non-refoulement claim is well settled:

(1)  Non-refoulement claim by a child is a separate claim from the claims made by his/her parents.  In principle, the decision-maker should consider each claim by reference to the personal circumstances of each claimant.

(2)  Even if the claims are based on the same set of primary facts, it would be an error of law if the decision-maker simply decides all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately.  It does not necessarily follow from the dismissal of the claim of a parent that his/her child’s claim should also be dismissed without further consideration of his/her personal circumstances.

(3)  Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

(4)  When dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of his/her non-refoulement claim, the court should pay special attention to examine, in the context of the high standard of fairness, whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions.  In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which have not, or have not properly, been advanced to the Board because of the absence of legal representation.

See Re Jasvir Singh [2021] HKCA 53, [30] - [31], following Fabio Arlyn Timogan [2020] HKCA 971, [34].

10.In our view, the applicants’ allegations have no substance.  The applicants’ complaints are all general and vague without specific particulars or evidence in support.  General assertions of their fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  More importantly, the applicants failed to point out any error in the Leave Decision with specific particulars.  On this basis alone, the present appeal is a non-starter.

11.In any event, we have considered the Leave Decision carefully and are unable to see any arguable ground of appeal against the decision.

12.As noted by the Judge at [14] of the Leave Decision, the Board dismissed their appeal after considering all the evidence that the applicants were not at any risk of their right to life under BOR2 being violated, and that there was no reason on all the evidence to believe that they would be at risk upon refoulement.  More importantly, as the Judge properly observed, the Board also noted at [20] of the Board’s Decision that:

“20. 1^st Petitioner has stated that if she and 2^nd Petitioner are refouled to the Philippines they could go and live with her father and her 3 sons in Binangonan city, Rizal Province, where she believes that she would be safe from Edgar, and where she might well be able to find employment.” (Emphasis added)

13.It is thus on those bases that the Board dismissed the applicants’ appeal on the basis of BOR2 risk.

14.As the Court of Appeal held in Re Rina Mulyani [2021] HKCA 1156, at [25], if the court is satisfied that the Board achieved high standard of fairness in dealing with the minor’s claim and there is no underlying matter that may support a minor-specific non-refoulement ground, it is open to the court to conclude that the minor’s intended judicial review of the Board’s decision is without merit.  Given the Board’s observation at [20] of the Board’s Decision as quoted above, we are satisfied that this is the situation in respect of the 2^nd applicant’s claim in the present case.  We see no basis to interfere with the Leave Decision.

15.For the above reasons, the appeal has no merit and we dismiss it.

16.For the avoidance of doubt, we shall treat the non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2^nd applicant’s application a nullity.

The applicants acting in person