Ruiz Cherry Lou Frias and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2681/2025

[2026] HKCFI 3637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2681 of 2025

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 1st and 3rd Applicants, and the 2nd Applicant being absent 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 Rules of the High Court in these proceedings be treated as a mere irregularity without rendering the 2^nd and 3^rd Applicants’ application a nullity.

Observations for the Applicants:

THE APPLICATION

1.The 1^st applicant is the mother (“the mother”). She also acted as the next friend of the 2^nd applicant, aged 12 (“the son”), and the 3^rd applicant, aged 8 (“the daughter”). They are illegal immigrants. The mother gave birth to the son and the daughter in Hong Kong.

2.The mother and the son first lodged their claim for non-refoulement with the Director of Immigration (“the Director”). By Notice of Decision dated 7 March 2016 (“the Director’s 1^st Decision”), the Director refused their claims. They appealed to the Torture Claims Appeal Board (“the Board”). By Decision dated 6 June 2018 (“the Board’s 1^st Decision”), the Board dismissed their appeal. By Form 86 dated 28 August 2019 (“the 1^st Form 86”), they applied to the Court of First Instance for leave for judicial review of the Board’s 1^st Decision.

3.Before their application for leave for judicial review of the Board’s 1^st Decision was heard, the mother gave birth to the 3^rd applicant. She acted as the guardian of the 3^rd applicant and lodged a non-refoulement claim to the Director for the 3^rd applicant. By Notice of Decision dated 28 December 2018 (“the Director’s 2^nd Decision”), the Director refused the 3^rd applicant’s claim.

4.Acted by the mother, the 3^rd applicant appealed to the Board. By Decision dated 8 May 2020 (“the Board’s 2^nd Decision”), the Board dismissed the 3^rd applicant’s appeal. The Board’s 1^st Decision and the Board’s 2^nd Decision are collectively called (“the Board’s Decisions”).

5.On behalf of the 3^rd applicant, the mother applied to the Court to join the 3^rd applicant in the 1^st Form 86. However, the action was instituted before the Board’s 2^nd Decision.

6.Leave was granted to the mother to withdraw the 1^st Form 86 and file another Form 86 to include herself and her children in the application. The mother duly filed another Form 86 dated 3 December 2025 (“the 2^nd Form 86”) for her own and her children’s application for leave to apply for judicial review of the Board’s Decisions.

7.The mother appeared before the Court on 10 June 2026.

8.The claim of the 2^nd and the 3^rd applicants rely on the facts of the mother’s claim.

9.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 1^st and the 2^nd applicants’ case                                                    

10.The mother is a national of the Philippines.

11.The applicants lodged a non-refoulement claim, on the basis that, if refouled, the mother and her son will be harmed or killed by her parents because the son was born out of wedlock, which her parents regarded as a disgrace to the family.

12.Details of the facts are set out in the Board’s 1^st Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL002681_2025_files/1st_Board's_Decision.pdf

The Director’s 1^st Decision

13.The Director considered the 1^st and the 2^nd applicants’ claim 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”).

14.By way of the Director’s 1^st Decision, the Director dismissed the 1^st and the 2^nd applicants’ claim on all applicable risks because it was unsubstantiated.

The Board’s 1^st Decision

15.The 1^st and the 2^nd applicants appealed the Director’s 1^st Decision to the Board. On 12 January 2018, the Board conducted an oral hearing for the appeal. The mother had given evidence and answered the Board’s questions.

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

(1)  The main issue is a family dispute as the father of the mother was angry because the son was born out of wedlock. It is a localized issue only. [56]-[57]

(2)  The Board was not persuaded that the mother’s family has banned her and her son from returning to locations in the Philippines other than the village where they reside. [57]

(3)  The Board was not persuaded that the mother and her son face a real risk of ill-treatment on their return to the Philippines, particularly if they relocate to a community where they do not have family. [58]

(4)  State protection is available if they return to the Philippines. [58]-[63]

(5)  Internal relocation is also viable. [64]-[68]

17.For the reasons above, the Board dismissed the appeal and confirmed the Director’s 1^st Decision.

18.In support of their application, the mother said in her affidavit that the Board’s Decisions were not satisfactory. She has attached a copy of the Board’s Decisions to her affidavit.

The 3^rd applicant’s case

19.The Director considered the daughter’s case under the applicable risks and rejected her claim because it was unsubstantiated. The Director set out his reasons in the Director’s 2^nd Decision.

20.The mother acted as guardian of her daughter, appealed to the Board. On 5 June 2019, the Board held a hearing for the appeal. The mother was present and she had answered the Board’s question. Having considered the mother’s evidence, the Board made the findings below, details of which are set out in the Board’s 2^nd Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL002681_2025_files/2nd_Board's_Decision.pdf

(1)  The appeal arises out of the same facts of the appeal of the mother and the son. [48]

(2)  The country of origin information (“COI”) suggests that there are programmes in the Philippines which focus on helping children less than 18 years old and single parents. [55]

(3)  The mother is a reliable witness and the Board accepted that her parents are angry with her. [59]

(4)  However, the issue is a localized issue and there is no evidence that her father would take any steps to harm her or her children if they move to a location within the Philippines which is distant from her parents. [61]

(5)  The Board was not persuaded that the mother’s family has banned her and her daughter from returning to locations in the Philippines other than the village where they reside.[62]

(6)  State protection will be available and internal relocation will be viable. [68]‑[74]

21.For the reasons above, the Board dismissed the daughter’s appeal and confirmed the Director’s 2^nd Decision.

DISCUSSION

22.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 applicant’s 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).

23.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the mother said she had applied for legal aid, but was turned down. Upon being asked if she had any child specific issues which were not considered by the Board and she wanted the Court to take into consideration, she said that she had submitted all the issues to the Board. Her children may face the same problems as she faces herself if they return to the Philippines.

24.As far as the mother is concerned, she has not raised any specific reason to challenge the Board’s 1^st Decision.

25.It is apparent that the 1^st and the 2^nd 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, and to have separate consideration of the child specific issues as the minor is more venerable to the applicable risks than the parent.

26.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 .”

27.The Court of Appeal in Re Penol, Sally Barsolaso & Diggs 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 1^st 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.”

28.The mother has not raised any concern of potential non-refoulement grounds relating to the son and the daughter, but which had not been advanced to the Board or considered by it because of lack of legal representation. Nor do I see any myself. Therefore, I consider that the son and the daughter do not have any reasonable prospect of success in the intended judicial review of the Board’s Decisions.

29.There is not reason for this Court to interfere with the Board’s Decisions.

30.The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review of the Board’s Decisions.

DISPOSITION

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

32.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 and the daughter’s application a nullity.

Dated the 30^th day of June 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