S and Another v. Torture Claims Appeal Board
Read the full judgment text of HCAL 360/2020 on BabelCite. This High Court CFI judgment was delivered on 29 April 2026.
1. By way of Form 86 dated and filed on 10 March 2020, 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:-
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HCAL 360/2020 [2026] HKCFI 2465 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 360 OF 2020
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:
Observations for the applicants: The Leave Application 1.By way of Form 86 dated and filed on 10 March 2020, the 1st and 2nd applicants applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:- “Relief from the decision by Appeal Board. Date: 2-1-2020” 2.The Torture Claims Appeal Board (“the Board”) made a decision dated 2 January 2020 (“the Board’s Decision”) regarding the 1st and 2nd applicants’ appeal/petition against the decision of the Director of Immigration (“the Director”) dated 2 August 2019 (“the Director’s Decision”). It is clear that the subject matter of the Leave Application should be the Board’s Decision. 3.The 1st applicant is the mother of the 2nd applicant, who was just an infant less than one year old when his case was assessed by the Board. The 2nd applicant was not legally represented before the Board, and was only represented by the 1st applicant. 4.On 4 December 2025, the Director of Legal Aid issued a Legal Aid Certificate to the 1st applicant acting for the 2nd applicant in these proceedings. Since then, the 2nd applicant was legally represented before this court. By way of an ex-parte summons dated 9 April 2026, the 2nd applicant applied for an anonymity order and leave to amend Form 86. This court granted the same to the applicants at the oral hearing of the Leave Application on 16 April 2026. The Amended Form 86 was filed on 17 April 2026. 5.The Board found that both applicants had failed to establish a case for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed the applicants’ appeal/petition and confirmed the Director’s Decision, which rejected the applicants’ non-refoulement claims. The applicants’ case 6.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. 7.The 1st 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 to work as a foreign domestic helper ended prematurely in November 2015. She gave birth to the 2nd applicant on 25 December 2018 in Hong Kong. The 1st applicant met the father of the 2nd applicant in mid-2017. The father of the 2nd applicant is of a different nationality from the 1st applicant. The 1st applicant had lost contact with the 2nd applicant’s father when she was 4-months pregnant with the 2nd applicant. 8.In sum, the applicants claimed for non-refoulement protection because the 1st applicant feared that if she returned to country I, she and the 2nd applicant would be harmed or killed by the 1st applicant’s husband (“the Husband”) since he refused the 1st applicant’s request for a divorce, and was infuriated by the 1st applicant’s extramarital pregnancy. The Husband threatened to abandon the two children that the 1st applicant had with him on the street, and to kill the 1st applicant and her child, ie the 2nd applicant, in their home country. 9.The 1st applicant also claimed that her father despised her and threatened to beat her and disown her upon learning of the applicant’s extramarital affair. 10.Thus, the 1st applicant claimed that she and the 2nd applicant could not return to her parents’ home, and she could not go anywhere in her home country. The 1st applicant claimed that she did not have the financial resources to relocate to other parts of her home country, and finding a job in the country would become even more difficult for her as she needed to take care of the 2nd applicant who was just a baby. 11.Apart from the above, the 1st applicant also feared that the 2nd applicant would be deprived of education opportunities in her home country because the authorities only provided limited support for the poor in education. Without a stable job, the 1st applicant could not save up money for the 2nd applicant’s school fees. 12.The Husband, who had been living with the 1st applicant’s parents with the two children he had with the 1st applicant, had left the 1st applicant’s parents’ home since April 2018. The 1st applicant did not know the current whereabouts of the Husband and their two children. Oral hearing 13.The applicants requested for an oral hearing of the Leave Application and their case was first heard on 27 May 2025. The applicants were then not legally represented. 14.After this court explained to the 1st applicant that the 2nd applicant is a minor and he should have legal representation under Order 80, rule 2 of the Rules of High Court, the 1st applicant expressed that she would apply for legal aid for the 2nd applicant. 15.The hearing was thus adjourned and the 1st applicant was directed to apply for legal aid so as to have legal representation for the 2nd applicant within three months. 16.As aforesaid, the 2nd applicant was granted legal aid on 4 December 2025. He was represented by counsel at the resumed hearing on 16 April 2026. 17.At the hearing on 16 April 2026, apart from saying that she was afraid of the Husband’s threat, the 1st applicant did not put forward any ground to challenge the Board’s Decision in respect of her own case. 18.Counsel for the 2nd applicant confirmed at the hearing that the 2nd applicant would rely on the ground as stated in the Amended Form 86 for his intended judicial review, namely that the Board did not give separate consideration to the 2nd applicant’s claim and his child-specific risks, such as: (1) he was an infant and more vulnerable to ill-treatment and/or other risks of harm; (2) he did not understand the language and/or the culture of the 1st applicant’s country and could face mixed-race discrimination; and (3) the Husband’s threat might have a different effect on him from that on the 1st applicant. Grounds for judicial review 19.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). 20.The 1st applicant did not advance any ground for her own case in the original or the amended Form 86, nor in her supporting affirmation dated 10 March 2020. In her affirmation, the 1st applicant merely stated that she was not satisfied with the Board’s Decision, she could not go back to her country at the moment because her life was not safe, and she asked this court to help her to stay in Hong Kong until her problem would be solved. 21.As aforesaid, at the oral hearing before this court on 16 April 2026, the 1st applicant only reiterated the basis of her non-refoulement claim, namely that she was afraid of the Husband’s threats. 22.In the Amended Form 86 under the heading “Grounds on which relief is sought”, counsel for the 2nd applicant asserted that the Board erred in law by failing to consider the 2nd applicant’s claim separately from that of the 1st applicant, contrary to the guidance set out by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth, Esq [2021] 2 HKC 458. As aforesaid, counsel also gave three particular child-specific risks that the Board had failed to consider for the 2nd applicant’s case. Discussion 23.This court will first deal with the 2nd applicant’s Leave Application. 24.The 2nd applicant was an infant less than one year old when his case was heard by the Board on 1 November 2019. He was not legally represented at the Board’s hearing and was only represented by his mother, ie the 1st applicant. Thus, with the lack of legal representation, it was possible that the 2nd applicant’s own case might not have been properly presented to the Board for its consideration. 25.As confirmed by counsel for the 2nd applicant at the oral hearing before this court, the 2nd applicant relied on one single ground, namely that the Board erred in law by failing to consider his claim separately from that of the 1st applicant, contrary to the Fabio principles. 26.This court notes from the Board’s Decision that the Board had indeed only focused on dealing with the 1st applicant’s claimed risks arising from her extramarital affair and the extramarital pregnancy. As to the 2nd applicant’s personal circumstances, the Board only mentioned the 2nd applicant’s date of birth in paragraph 2 of the Board’s Decision, and that he would be regarded as a citizen of Country I even though he was born in Hong Kong and the authorities in Country I would provide 12 years of free education to children as well as other supports for the poor household in paragraph 34 of the Board’s Decision. 27.The Board was plainly aware of the 2nd applicant’s personal circumstances as a minor of tender age. Although the Board did not explicitly mention the nationality of the father of the 2nd applicant, the Board should be fully aware of the fact that the 2nd applicant is a child of mixed race, as such information was contained in the 2nd applicant’s Non-refoulement Claim Form. 28.Although the Board had addressed the 1st applicant’s concern that the 2nd applicant would be deprived of education opportunities in the 1st applicant’s home country by finding from country of origin information (“COI”) that the 2nd applicant would be provided with 12 years of education, the Board did not separately consider the difficulties the 2nd applicant might face upon refoulement, such as whether he would face discrimination as a child of mixed race, whether the 1st applicant’s parents, especially the 1st applicant’s father, would accept the 2nd applicant, and whether the 2nd applicant would be ill-treated by his grandfather or any other persons upon refoulement. 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 2nd applicant’s unique situation as a child of mixed race, which might be a cause for discrimination. It is therefore arguable that the Board had failed to give adequate and separate consideration to the 2nd applicant’s claim under the Fabio principles. 30.Thus, it is this court’s view that the 2nd applicant’s case for the intended judicial review is arguable and leave should be granted to the 2nd applicant to apply for judicial review in respect of the Board’s Decision concerning his own case. 31.As to the 1st applicant’s case, her danger arising from the Husband and her own father had been duly assessed but rejected by the Board. If the 1st applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. 32.In assessing the appeal/petition by the 1st applicant, the Board took into consideration all the facts presented by her. 33.The Board found that it was only the 1st applicant’s mere assertion that the Husband would kill her upon her return to Country I. Based on the information provided by the 1st applicant, no severe pain or suffering within the definition of torture was ever inflicted upon her at the time when she was in Country I. There was no evidence of state acquiescence in her case, and the applicant’s fear of ill-treatment did not fall within any of the Convention categories. The applicant’s dispute with the Husband was purely a private matter involving the deteriorating relationship with the Husband as a result of her extramarital pregnancy in Hong Kong. The Board did not accept that the ill-treatment encountered by the 1st applicant attained a minimum level of severity. 34.Moreover, the Board found from extensive COI that state protection as well as other avenues for seeking protection and assistance were available to the 1st applicant. 35.Further, the Board had considered the 1st applicant’s profile, and considered that it was feasible and not unreasonable for her to relocate to other regions of her own country to avoid any perceived harm. The Board found that it would be very difficult for the Husband or the 1st applicant’s father to locate her if she relocated to other places within the country. 36.Thus, the Board was satisfied that the 1st applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds under the USM. 37.The 1st applicant’s allegation that her life was not safe in her country and her fear of the Husband’s threat had all been duly assessed by the Board. 38.This court finds no flaw in the Board’s finding that the 1st applicant was not at risk of any of the proscribed forms of harm under the USM. 39.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 1st applicant has failed to establish such a claim in respect of her own case and hence leave must be refused regarding her own application. Conclusion 40.For reasons aforesaid, the Leave Application in respect of the 1st applicant’s application regarding the Board’s Decision is dismissed. Leave is granted to the 2nd applicant to apply for judicial review in respect of the Board’s Decision. 41.The 2nd applicant is directed to issue an originating summons for the intended judicial review on or before 13 May 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court. Dated the 29th 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
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Cases cited in this judgment