“M” and Another v. Torture Claims Appeal Board

HCAL 3746/2019

[2026] HKCFI 2269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3746 OF 2019

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

Order by Deputy High Court Judge Michael WONG:

1.   The 1^st applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 27 November 2019 be dismissed.

2.   Leave granted to the 2^nd applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 27 November 2019.

3.   The 2^nd applicant is directed to issue an originating summons for the intended judicial review on or before 6 May 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Observations for the applicants:

The Leave Application

1.By way of Form 86 dated and filed on 16 December 2019, the 1^st and 2^nd applicants applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-

“The desicon taken by the Adjudicator of Torture Claims Appeal Board 16-12-2019”

2.In fact, the Torture Claims Appeal Board (“the Board”) made a decision dated 27 November 2019 (“the Board’s Decision”) regarding the 1^st applicant’s petition and the 2^nd applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 28 September 2019 (“the Director’s Decision”).  The date of the decision referred to in Form 86 was clearly wrong, as the Board did not make a decision in respect of the applicants on 16 December 2019, which was actually the date of filing of the Leave Application.

3.The 1^st applicant is the mother of the 2^nd applicant, who was 7 years old when his case was assessed by the Board.  The 2^nd applicant was not legally represented before the Board, and was only represented by the 1^st applicant.

4.On 3 November 2025, the Director of Legal Aid issued a Legal Aid Certificate to the 1^st applicant acting for the 2^nd applicant in these proceedings.  Since then, the 2^nd applicant was legally represented before this court.  Upon the 2^nd applicant’s application by way of letter dated 23 February 2026, this court granted an anonymity order to the applicants on 25 February 2026.

5.At the oral hearing of the Leave Application on 5 March 2026, leave was granted to the applicants to amend Form 86 and the Amended Form 86 was filed on 6 March 2026.  However, in the Amended Form 86, the applicants stated the date of the Director’s Decision as 29 September 2018, when it should be 28 September 2018.  Nevertheless, it was not material as the date of the Board’s Decision was correctly stated as 27 November 2019 in the Amended Form 86, which is the subject matter of the Leave Application.

6.The Board found that both applicants had failed to substantiate a case for non-refoulement protection on the grounds of BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”).  Further, the Board rejected the 2^nd applicant’s claim on the ground of Torture Risk[4] under the USM.

7.Thus, the Board dismissed the 1^st applicant’s petition on the grounds of BOR 2 Risk, BOR 3 Risk and Persecution Risk, and the 2^nd applicant’s appeal/petition on all the applicable grounds under the USM, and confirmed the Director’s Decision.

8.The 1^st applicant had previously made a torture claim and her torture claim was rejected by the Director on 29 January 2013.  The 1^st applicant did not appeal against that decision.  Thus, the 1^st applicant’s claim for non-refoulement protection on the ground of Torture Risk had been finally disposed of, and it was not necessary for the Board to re-assess the same for the 1^st applicant in the Board’s Decision.

The applicants’ case

9.Since an anonymity order was granted, this court will not include any factual information that could be used to identify the applicants, and no hyperlink for the Board’s Decision is included in this decision.

10.The 1^st applicant was a domestic helper in Hong Kong who came from country I (the name of the country is not mentioned due to the anonymity order).  She overstayed in Hong Kong after her contract as a foreign domestic helper ended in October 2010.  She gave birth to the 2^nd applicant on 3 December 2011 in Hong Kong.  The father of the 2^nd applicant is a citizen of country N (the name of the country is not mentioned due to the anonymity order), with whom the 1^st applicant had lost contact after the 2^nd applicant was born.

11.In sum, the applicants claimed for non-refoulement protection because the 1^st applicant feared that if she returned to country I, she and the 2^nd applicant would be harmed or killed by a man named MN (the full name of the person is not mentioned due to the anonymity order), a friend of her late father, as the 1^st applicant had failed to repay a debt owed by her family to MN.

12.Two loans were taken out by the 1^st applicant’s parents in 2004 and 2005 respectively from MN, whom the 1^st applicant had never met.  The purpose of the loans was to pay for the 1^st applicant’s father’s medical expenses.  Since the 1^st applicant’s parents were unable to repay the debt to MN, the 1^st applicant verbally agreed with MN that she would be responsible for repaying the debt after she obtained employment in Hong Kong.

13.The 1^st applicant was able to make repayments to MN when she was working as a foreign domestic helper in Hong Kong from 2006 to 2010, except for the three months when the 1^st applicant was finding employment after her first employment contract ended in August 2008.  She stopped making repayments when her last employment contract ended in 2010.  MN called her and threatened her that he would kill her and her parents.  She changed her telephone number in order to avoid calls from MN.

14.In her Notice of Appeal/Petition of 12 October 2018, the 1^st applicant claimed to have lost contact with her sister, and thus was worried that her family was unable and had not settled the outstanding loan.

15.The 1^st applicant never made any report to the police or government authorities in her country because she felt that she was responsible for the debt and did not have any evidence.

16.As to internal relocation within her country, the 1^st applicant claimed that she could not relocate to somewhere else since she did not have any family members and could not find work elsewhere.

Oral hearing

17.The applicants requested for an oral hearing of the Leave Application and their case was heard on 5 March 2026.

18.Counsel for the 2^nd applicant confirmed at the hearing that the 2^nd applicant would rely on only one ground as stated in the Amended Form 86 for his intended judicial review, namely unlawful failure of the Board to separately assess his claim for non-refoulement protection.

19.When this court asked the 1^st applicant for her own grounds for the intended judicial review, the 1^st applicant only said that she did not want to be separated from the 2^nd applicant and she felt threatened if she was returned to her country.

Grounds for judicial review

20.The applicants are required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

21.In the Amended Form 86 under the heading “GROUNDS OF REVIEW”, counsel for the 2^nd applicant asserted that the Board erred in law by failing to consider the 2^nd applicant’s claim separately from that of the 1^st applicant, contrary to the Fabio[5] principles.

22.The 1^st applicant did not advance any valid ground for her intended judicial review in the original Form 86 or the Amended Form 86.  In her supporting affirmation dated 16 December 2019, the 1^st applicant stated that the Board’s Decision and the Director’s Decision were unreasonable and she was not satisfied with their decisions.  The 1^st applicant further mentioned that the Board and the Director were depending merely on web reports to make a decision but not going into the source relevant to her torture claim in her country.

23.As aforesaid, the 1^st applicant did not mention any valid ground for her intended judicial review, nor elaborate the grounds mentioned in her supporting affirmation at the oral hearing, save that she did not want to be separated from the 2^nd applicant and she felt threatened if she was returned to her country.

Discussion

24.This court will first deal with the 2^nd applicant’s Leave Application.

25.The 2^nd applicant was about seven years and eleven months old when his case was heard by the Board on 31 October 2019.  He was not legally represented at the Board’s hearing and was only represented by his mother, ie the 1^st applicant.  Thus, with the lack of legal representation, it was possible that the 2^nd applicant’s own case might not have been properly presented to the Board for its consideration. 

26.As confirmed by counsel for the 2^nd applicant at the oral hearing before this court, the 2^nd applicant relied on one single ground, namely that the Board erred in law by failing to consider his claim separately from that of the 1^st applicant, contrary to the Fabio principles.

27.This court notes from the Board’s Decision that the Board had indeed only focused on dealing with the 1^st applicant’s claimed risks arising from her inability to repay the debt owed to MN.  As to the 2^nd applicant’s personal circumstances, the Board only mentioned that the 2^nd applicant is the child of a relationship between his mother and a citizen of country N (at paragraph 2), that the 2^nd applicant only speaks English (at paragraph 6), and that the 2^nd applicant is now of school age (at paragraph 65).

28.Although the Board was aware of the 2^nd applicant’s personal circumstances as stated above, the Board did not separately consider the difficulties the 2^nd applicant might face upon refoulement, such as whether he would face discrimination as a child of mixed race who speaks only English and not any language of the 1^st applicant’s country, and whether the 2^nd applicant could have access to suitable education given his language ability.  This court is of the view that the Board failed to give adequate and separate consideration to the 2^nd applicant’s claim under the Fabio principles.

29.As held in Re Shahul Hameed Beer Mohamed and Others, 08/04/2026, CACV 77/2024, [2026] HKCA 632 and Re Bantigue Susan Banes and Another, 29/09/2025, CACV 234/2024, [2025] HKCA 853, the Board should have considered the 2^nd applicant’s unique situation as a child of mixed race, which might be a cause for discrimination.

30.Thus, it is this court’s view that the 2^nd applicant’s case is arguable at the intended judicial review and leave should be granted to the 2^nd applicant to apply for judicial review in respect of the Board’s Decision concerning his own case.

31.As to the 1^st applicant’s case, her danger arising from the debt to MN had been duly assessed but rejected by the Board.  If the 1^st applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

32.In assessing the petition by the 1^st applicant, the Board took into consideration all the facts presented by her.  These included the facts that MN had on at least three occasions uttered threats not simply on her but also threats against her parents including threats to kill them if the loan was not repaid.  It was the 1^st applicant’s evidence at the Board’s hearing that her mother was still living in the same village and had come to no harm.  The Board found it apparent that if any such threats were made by MN, they were simply made to put pressure on the 1^st applicant and her family, rather than with any serious intent to carry them out.

33.The Board was satisfied that if the 1^st applicant genuinely believed that there was a possibility that MN might carry out the threats, she would have taken serious steps to contact her mother and sisters and ascertain that they were alright and had not been harmed during the past few years.

34.Further, even on the 1^st applicant’s account, she could not even know for sure that any money was still owed to MN, or, if it was, that he was not satisfied with repayments being made by instalments by her sisters.  According to the 1^st applicant, she had not spoken to MN for seven years.  Bearing in mind the evidence of repayments being made by her sisters, the 1^st applicant could not say that her sisters had not satisfied the debt, or at least made an arrangement satisfactory to MN.

35.Thus, the Board was satisfied that the 1^st applicant had failed to show, even to the low standard required, that there was a real chance for believing that she would face any harm from MN.

36.Moreover, the Board found that the issue between the 1^st applicant and MN was purely a matter relating to a private debt.  There was no state acquiescence involved.  Although country of origin information (“COI”) showed that there were corruption and other shortcomings of some police in country I, there was no evidence that the 1^st applicant would not be able to receive protection from the police if indeed she had been genuinely at risk.  The 1^st applicant had actually never reported to the police.

37.The Board also found that even if the 1^st applicant was at any risk in her local area, it would not be unreasonable for her to find accommodation in employment elsewhere in country I, given that the 1^st applicant was presentable and educated, and was able to speak at least basic English.  The 1^st applicant also had experience not simply in her parents’ catering business but also in domestic service in Hong Kong.

38.Thus, the Board dismissed the 1^st applicant’s petition.

39.The 1^st applicant’s allegations in her supporting affirmation concerning the Board’s Decision, ie it was unreasonable and depending merely on web reports without going into the source relevant to her torture claim in her country, were bare allegations without any particulars.

40.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626).  Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.  Thus, such general allegations cannot help the 1^st applicant at all.

41.This court finds no flaw in the Board’s finding that the 1^st applicant was not at risk of any of the proscribed forms of harm, including BOR 2 Risk, BOR 3 Risk and Persecution Risk, from MN under the USM.

42.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the 1^st applicant has failed to establish such a claim in respect of her own claim and hence leave must be refused regarding her own application.

Conclusion

43.For reasons aforesaid, the Leave Application in respect of the 1^st applicant’s application regarding the Board’s Decision is dismissed.  Leave is granted to the 2^nd applicant to apply for judicial review in respect of the Board’s Decision.

44.The 2^nd applicant is directed to issue an originating summons for the intended judicial review on or before 6 May 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Dated the 22^nd day of April 2026

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