Lee Flower Joy Esteva and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 1066/2025, [2026] HKCA 1182

On Appeal From [2026] HKCFI 5405

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1066 OF 2025

(ON APPEAL FROM HCAL NO 3499 OF 2019)

__________________________

BETWEEN

__________________________

________________

J U D G M E N T

________________

Hon Mimmie Chan J (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 11 November 2025[1] (“the Leave Decision”) refusing to grant leave for the applicants to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 15 November 2019 (“the Board’s Decision”) dismissing the applicants’ appeals against the decision of the Director of Immigration dated 27 May 2019 rejecting the applicants’ non-refoulement claims.

Background

2.The 1^st applicant is a national of the Philippines. She is the mother of the 2^nd applicant, her son, who was born in Hong Kong on 27 November 2016. The 2^nd applicant’s non-refoulement claim was lodged by the 1^st applicant on his behalf.

3.The background to this case, the applicants’ bases for their claims and the reasons given by the Board in its Decision have been set out therein and summarised by the Judge in the Leave Decision at [1]-[11], which will not be repeated. The 2^nd applicant’s leave application was lodged by the 1^st applicant on his behalf.

4.After considering the documents filed as well as the oral submissions made by the 1^st applicant at the hearing of the leave applications, the Judge dismissed the applications for the reasons stated in the Leave Decision. 

Appeal to this court

5.By a Notice of Appeal dated 21 November 2025, the 1^st applicant (on behalf of herself and the 2^nd applicant) stated:

“I plead to the Court of Appeal to review my application. The decision [is] not reasonable. I want to appeal against it.”

6.In the 1^st applicant’s written submissions lodged on 3 June 2026 (presumably also on behalf of the 2^nd applicant), she repeated the factual background to her non-refoulement claim as well as the dangers she may face should she be refouled. The 1^st applicant also contended, without elaboration or particulars, that the Board’s Decision was unreasonable.   

7.We heard the appeal on 2 July 2026, at which the applicants appeared in person. At the hearing, the 1^st applicant (on behalf of herself and the 2^nd applicant) submitted that she had nothing to add to the matters already set out in the documents filed with the Court.

Discussion

8.As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review. It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

9.The 1^st applicant has wholly failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. 

10.In the present case and in respect of the 1^st applicant’s appeal, the Board found that the primary threat of harm posed to the applicants (as claimed by the 1^st applicant) from her former cohabitant “Larry” was unsubstantiated on the facts by reasons that inter alia (i) she had returned to the Philippines after 2019 and had not encountered any difficulty with Larry; (ii) Larry would have no right to disturb the applicants because the 2^nd applicant was born into wedlock between the 1^st applicant and her husband; (iii) there was no evidence to suggest that Larry was supported by any groups of gangsters (as claimed by the 1^st applicant); and (iv) the lapse of time since the alleged threat from Larry rendered the risk of harm to be low. The Board also considered that the dispute between the 1^st applicant and Larry was private and personal, without any official involvement. In any event, the Board found that state or police protection and suitable options of internal relocation were available to the 1^st applicant in order to minimise the risk of harm, if any. 

11.These were factual findings and conclusions open to the Board on the evidence, and were sufficiently canvassed and considered by the Judge in the Leave Decision at [11]-[16]. We see no basis to interfere.  

12.Accordingly, the 1^st applicant has failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision with regards to her appeal/claim, or how such Decision could be said to be Wednesbury unreasonable.

13.It is however necessary for this court to consider the position of the 2^nd applicant separately, as he is a minor and has not been legally represented in these proceedings as required under Order 80, rule 2 of the Rules of the High Court (Cap 4A). See Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971. 

14.We note that despite previous directions made by the Registrar of Civil Appeals, no steps have been taken to comply with the requirements under Order 80, rule 2. Notwithstanding this, the present application was referred by the Registrar to this Court for determination. 

15.The proper approach in dealing with children’s non-refoulement claims has been considered by the Court of Appeal in Fabio Arlyn Timogan and Re Jasvir Singh [2021] HKCA 53 which established that:

(a)     Non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children;

(b)     Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided 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 by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

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

16.In the case of the 2^nd applicant, we do not consider there to be any indication that the merits of his claim (or any underlying matter that may support minor-specific non-refoulement grounds) had not been adequately explored before the Judge due to the lack of legal representation. For the following reasons, we are also of the view that, after subjecting the Board’s Decision to anxious scrutiny, the 2^nd applicant’s non-refoulement claim had been adequately considered by the Board.

17.As noted above, while the reality remains in the majority of cases involving minors that the factual basis of the minor’s claim would be dependent on or even entirely rest upon that of the parent’s, regard must be had to the personal circumstances of the minor (and any risks of harm posed to the minor) by the decision-maker. In this case, like the majority of similar cases involving minor applicants, the basis of the 2^nd applicant’s perceived fear or risk of harm upon refoulement rested upon the primary case of his mother’s. 

18.At the outset, we note, as pointed out by the Judge at the Leave Decision at [19], that the Board was aware of the fact (and found) that the 2^nd applicant was born in wedlock and thus the perceived risk of harm from Larry, who was not his father, was unjustified and thus was essentially unlikely for this reason (see Board’s Decision, [61]).

19.As the Board had found that the perceived threat by Larry towards the 1^st applicant was unsubstantiated (a finding which the Judge, and this Court above, has found no reason to disturb), the apparent risk of harm posed by Larry to the 2^nd applicant was also unsubstantiated.

20.Moreover and of significance, the 1^st applicant’s evidence at the hearing before the Board was that even if she were to return home to the Philippines with the 2^nd applicant (in order to facilitate an employment opportunity or otherwise), she would be able to reside, with the 2^nd applicant, in another city within the Philippines where Larry would be unable to locate them (Board’s Decision, [72]). Accordingly, the Board found that it was reasonable and possible for the 2^nd applicant to safely relocate within the Philippines, under the care and custody of the 1^st applicant, upon their return (Board’s Decision, [72]-[73]). 

21.In referring to the principles in Fabio and Re Jasvir Singh, the Judge was evidently aware of the need for the 2^nd applicant’s claim to be separately considered and examined (Leave Decision, [17]-[18]). The Judge found that the Board could not be faulted in finding that (i) the 2^nd applicant’s alleged risk of harm was not established on the evidence; (ii) even if such risk existed, it could be mitigated by resorting to state protection or by relocating internally in the Philippines; and (iii) there were no underlying matters which may support the 2^nd applicant’s minor-specific non-refoulement grounds as may be applicable in his case but which were not properly advanced to the Board due to lack of legal representation (Leave Decision, [11]-[19]). For the reasons stated above, we agree.

22.Accordingly, the 2^nd applicant has also failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision with regard to his appeal/claim, or how such Decision could be said to be Wednesbury unreasonable.

23.In the premises, the 1^st and 2^nd applicants have advanced no viable grounds of appeal against the Judge’s decision, and their appeals are accordingly dismissed.

The applicants appearing in person