Jc and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2559/2019

[2026] HKCFI 2418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2559 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 oral submissions by the Solicitor for the 1st and 2nd Applicants in open court;

Order by Deputy High Court Judge To:

1.   Leave to apply for Judicial Review be granted; and

2.   There be no order as to costs, save that the Applicants’ own costs be taxed in accordance with Legal Aid Regulations

Observations for the Applicants:

Introduction

1.This is the Applicant’s application by Form 86 filed on 3 September 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 1 August 2019 dismissing their appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 11 June 2018 (the “Notice”), refusing their application for non-refoulement protection.

Background

2.The 1^st and 2^nd Applicants are Filipino nationals, now aged 40 and 13 respectively.  The 1^st Applicant is the mother of the 2^nd Applicant (respectively, the “mother” and the “daughter”).  Their personal background, the factual background leading to the present application, the basis of their claim and the arguments they advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s very detailed Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, the Applicants claim they will be harmed or killed by the 1^st Applicant’s husband/2^nd Applicant’s father (the “husband” or the “father” as the context requires) because of domestic violence and sexual abuse.  The mother had been subjected to physical and sexual violence from her father; and later from her husband.  The daughter also suffered domestic violence from her father.  The mother was diagnosed as suffering from post traumatic stress disorder (”PTSD”) and complex post traumatic stress disorder (“CPTSD”).  The daughter was diagnosed as suffering from PTSD, but has recovered.  Despite her unfortunate childhood, the mother had a good education.  She graduated from the university with a degree in accountancy and had gainful employment in a prestigious company earning higher than average income until December 2011, when she resigned to work for the church where she met her husband and married in 2012.

3.At the oral hearing before the Board, the mother testified on behalf of herself and her daughter.  The Board accepted the psychological report prepared by their psychologist and dispensed with the psychologist’s attendance at the hearing.  It was mindful of the vulnerability of the Applicants and paid close attention to the detailed findings of their psychological expert.  It researched extensively into the country of origin information about domestic violence against women in the Philippines.  It accepted the mother’s experiences were mostly as she had claimed, that her husband was verbally abusive and threatening and she was the victim of physical and sexual abuse from him, that he threatened through a mutual friend that he would kill the mother and her daughter and then commit suicide.  Nevertheless, given that they had been separated for some three years, and in view of other aspects of her evidence which the Board considers to be inconsistent with her claimed fears of future harm from her husband, the Board has concerns that the mother embellished or fabricated some aspects of her claims and had doubts that she genuinely feared her husband will harm and pursue her and her daughter upon their return to the Philippines.

4.On the other hand, the Board found there was nothing to indicate that the husband had taken any action to act on his threats or to suggest and accepting that he was an ex-policeman, that he had any continuing contacts with the police force or the ability to use his influence to locate and harm or threaten the Applicants.  It found the mother’s assertion that her husband had tried to take their daughter away from her to be exaggerated.  It also has considerable concerns that the husband was not in fact pursuing her and her daughter and that the mother was in fact aware that he did not have any such intention.  The Board considered her failure to seek protection on her first trip to Hong Kong and her willingness to return to the Philippines for several months, raised serious doubts regarding her reasons for coming to Hong Kong for some five months, her activities whilst in Hong Kong during that time, and the genuineness of her fear of harm from her husband.

5.Applying the law applicable to non-refoulement protection to the above facts and some further necessary finding of facts, the Board was not satisfied that the Applicants are entitled to protection under any of the applicable grounds under the Unified Screening Mechanism.  Hence, it dismissed their appeal.

The grounds of application

6.The Applicants advanced five grounds of application.

7.Ground (1):  The Board’s credibility assessment of the mother was erroneous and unsustainable in law in that it failed to engage with the expert evidence and/or to give any meaningful explanation for undermining and/or disregarding it in its credibility assessment of the mother.  First, Ms Lau, counsel for the Applicants submits that the Board had not given any or any sufficient reasons as to why the avoidant and repetitive manner of the mother’s evidence cannot be explained by her poor psychological state, rather than by dishonesty.  Such finding of dishonesty is irreconcilable with the psychologist’s evidence which the Board accepted.  Second, Ms Lau argues that the Board erred in its credibility finding by making unfounded speculation about what the mother should or should not have done if she genuinely feared further harm from her husband, for example that she should not have used the Facebook.  Third, Ms Lau submits that certain credibility findings were based on a mistake of fact.  For example, in paragraph 92 of its Decision the Board’s observation that the mother’s confirmation in her oral testimony before the Board that she was not physically harmed by her husband on 30 May 2016 was “in contrast to her claims in her non-refoulement claim form that her husband punched her on 30 May 2016.”

8.Ground (2):  The Board erred in its finding that the future risk of domestic abuse against the Applicants would be “minimal” as it was not “satisfied that the husband will pursue the Applicants on their return.”  The Board’s finding is premised on its finding that the husband had been separated for some time; the risk of sexual and domestic abuse was limited to the circumstances of their cohabitation – being “opportunistic” in nature; that the husband did not pursue the mother during the period of time when they were separated, which is indicative that he will not do so in the future; and that the mother can remain separated from the husband. 

9.Ms Lau accepts that in most non-refoulement claims it can be assumed that the claimant will take all reasonably available steps to avoid the agent(s) of persecution.  However, she submits that in the case of intimate partner violence, the situation may differ.  She argues that the Board had failed to recognise the obvious significance that the mother and her husband have a child together and failed to consider whether the husband might seek to exercise his parental rights, or whether the daughter might at some stage seek to contact her father.  Her complaint is that the Board simply assumed that the daughter would recognise the danger posed by the father and also adopt the ‘flight mentality’ ascribed to the mother.  She quoted the psychologist’s report in which the psychologist noted that the daughter had told her that “she missed her Dad” and occasionally asked the mother “why we left Daddy?”.  The psychologist observed that the daughter “did not appear to fully understand that her mother did not want to go back to the Philippines”.   The evidence illustrates that the daughter does not synchronize with the mother and does not perceive the danger this would entail for the mother or for herself.  She may even have a warm attitude towards reconnecting with her father.

10.Ground (3):  The Board erred in its finding of availability of state protection in failing to consider the adequacy and effectiveness of the protection.

11.Ground (4):  The Board erred in its assessment of risk of harm on account of the mother’s mental condition, ie the risk of re-traumatization. 

12.Ground (5):  The Board erred in failing to make an independent assessment of the daughter’s claim separate from the mother’s.  The Board’s Decision preceded the Court of Appeal’s decision in Fabio Arlyn Timogan & Ors v Evan Ruth Esq & Anor[2] by more than a year.  Ms Lau submits that the Board did not address the daughter’s position separately but only focused mostly on the position of the mother.  While the daughter’s claim is based on the same set of fact, it does not necessarily follow that her case falls with the mother’s.    

Discussion

13.In view of the course which this leave application will take, the Court has only set out the grounds of application very briefly.  Having rigorously examined the Decision, the papers and evidence with anxious scrutiny, the Court is satisfied that the grounds of application are at least arguable.  Hence, leave to apply for judicial review on all five grounds is granted to the Applicants.  As these grounds will have to be argued afresh in the substantive hearing after mature consideration, therefore this Court considers it appropriate not to give reasons for granting the leave application.

Conclusion

14.For the above reasons, the Applicants’ leave application is allowed.  The Court makes no order as to costs, save that the Applicant’s own costs be taxed in accordance with Legal Aid Regulations.

Dated the 29^th 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