Singh Cj Gurman a Minor By His Next Friend and Mother Viado Jhusan Donato v. Torture Claims Appeal Board

HCAL 794/2023

[2026] HKCFI 4998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 794 OF 2023

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the mother for the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Leave to apply for Judicial Review be granted;

2.  The Applicant be represented by the Official Solicitor pursuant to Order 80, rule 2 of the RHC;

3.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A); and

4.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as Respondent and the Director of Immigration as Interested Party.

Observations for the Applicant:

1.The Applicant is the minor son of a 42-years old national of the Philippines (“mother”) who last arrived in Hong Kong in October 2016 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 3 November 2019, she did not depart and instead overstayed, and was arrested by police more than 1 year later on 9 December 2020. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the bases that if she returned to the Philippines she would be harmed or killed by her creditor for failing to repay her debts and/or by her husband over her affair with an Indian man in Hong Kong, and upon subsequent given birth to the Applicant on 14 October 2021 out of such relationship, she also raised a non-refoulement claim for the Applicant based on her own claim.

2.The mother was born and raised in Abra, the Philippines. After leaving school she worked as a saleslady to make her living, later married her husband Valentine and made their home in her home district.

3.In 2013, the mother came to Hong Kong to work as a foreign domestic helper, and upon completing her employment in August 2016, she returned to the Philippines, and later in October 2016 she again applied to come to Hong Kong to work as a domestic helper, and to meet the necessary agency fees and expenses, she borrowed a loan from some local money-lender to be repaid by instalments from her monthly salary to be earned in Hong Kong.

4.Accordingly, the mother returned to Hong Kong in October 2016 to resume working as a foreign domestic helper, during which she met and formed a relationship with an Indian man, and with whom she subsequently lived together, but when her husband Valentine in the Philippines later found out about their affair, he sent messages to the mother threatening to kill her when she returned to the Philippines, whereupon the mother ceased all further contact with him.

5.By 2018, the mother started to default in her loan repayments that the money-lender also made death threats against her on the phone and social media and also sent men to her family in the Philippines to threaten to kill her upon her return to the Philippines.   

6.As a result, the mother became fearful for her life due to the threats from the money-lender and her husband, and so when her last employment was prematurely terminated in November 2019, she was afraid to return to the Philippines and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police in December 2020 she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) and attended screening interview before the Immigration Department with legal representation.             

7.By a Notice of Decision dated 16 April 2021, the Director of Immigration (“Director”) rejected the mother’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

8.In his decision, the Director took into account of all the relevant circumstances of the mother’s claim and found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by the money-lender or her husband Valentine due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of the money-lender to seriously harm or kill her other than to press her to repay her debts, while those from her husband were just angry words and empty threats, that in any event these were private monetary and domestic disputes between them only without any official involvement that state or police protection would be available to the mother if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 110 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the mother as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Manila or Davao City where it would be difficult if not impossible for the money-lender or her husband to locate her.

9.On 30 April 2021, the mother lodged an appeal to the Board against the Director’s decision, and for which she attended an oral hearing on 12 August 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 25 August 2021, her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision, the Board accepted the mother’s claim of threats from the money-lender over her debts but found no reliable evidence of any real intention of the money-lender to seriously harm or kill her other than to press her to repay her debts or of her husband other than just angry words and empty threats from him over her affair in Hong Kong, and that in any event these were private monetary or marital disputes between them only without any official involvement that state or police protection would be available to the mother upon her return to the Philippines as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by either the money-lender or her husband that her claim for non-refoulement protection failed on all applicable grounds. 

11.Meanwhile the mother upon giving birth to the Applicant on 14 October 2021 out of her relationship with the Indian man subsequently also raised a non-refoulement claim on his behalf on the same bases of risks of harm from the money-lender and/or her husband, and for which she also completed a NCF for the Applicant on 27 January 2022 and attended another screening interview before an immigration officer with legal representation from DLS. 

12.By a Notice of Decision dated 28 April 2022, the Director also rejected the Applicant’s claim on all the applicable grounds upon taking into account all the relevant circumstances of his case that it is not accepted that there will be any real and substantial risk of him being harmed or killed by his mother’s creditor or her husband upon his return to the Philippines as all their alleged verbal threats were directed against her only, that there is no reliable evidence that either the money-lender or her husband was aware of the existence of the Applicant let alone to form any intention to harm or kill him, that in any event these were private monetary and marital disputes between his mother and her creditor and husband only without any official involvement that state and police protection would be available to the Applicant upon his return with his mother to the Philippines if resorted to, and that relevant COI show that reasonable internal relocation alternatives are also available in the Philippines with a large population of 114 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant to move with his mother as an able-bodied adult with working experience to other parts of the country away from her home district in large cities such as Caloocan or Cebu City where it would be difficult if not impossible for anyone to locate her or the Applicant.        

13.On 12 May 2022, the mother lodged an appeal for the Applicant to the Board against the Director’s decision, and for which she attended another oral hearing on 27 April 2023 as his next friend before the Board during which she gave oral evidence on his behalf and also answered questions raised of his claim by the same Adjudicator for the Board. On 18 May 2023, his appeal was dismissed by the Board which also confirmed the Director’s decision.

14.In its decision[1], the Board similarly found no evidence indicating that the mother’s creditor or husband to have any real intention to seriously harm or kill the Applicant as all her alleged ill-treatments from them were restricted to verbal threats against her only to either press her to repay her debts while her husband did not even know the existence of the Applicant let alone to have formed any desire or intention to harm or kill him that the Board did not consider that there is any genuine or substantial risk of the Applicant being harmed or killed by either of them upon his return with his mother to the Philippines, and that in any event these were just private monetary or domestic disputes between his mother and her creditor or her husband only without any official involvement that state protection would be available to the Applicant as well as reasonable internal relocation for him to return with his mother to the Philippines away from her home district without any risk of being located by anyone that his claim for non-refoulement protection also failed on all the applicable grounds.

15.On 22 May 2023, the Applicant by his mother as his next friend filed a Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(2)  That the Board unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(3)  That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(4)  That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(5)  That in dismissing the Applicant’s appeal the Adjudicator showed no indication of having interacted with the facts of his claim or conducted any analysis of the supporting documents or turned his mind to the ground under consideration being the risk of violation of his right to life under BOR 2 risk;

(6)  That in dismissing the Applicant’s appeal the Board failed to consider all the facts of the claim afresh so as to come to its own findings under the applicable grounds;

(7)  That the Adjudicator had relied on some cases which are outdated considering the dramatic changes with the lack of credible source of information had resulted in him making groundless speculations;

(8)  That the Adjudicator failed to properly consider that the problems in the Applicant’s home country are very severe and that notwithstanding the fact that all the documents in support of his claim had already been submitted that the Adjudicator still failed to show his greater care and made the disappointing decision to dismiss the Applicant’s claim.  

16.These are however all just some bare and bald assertions containing a few key words or phrases but without any relevant or necessary details or particulars or elaboration as to how they apply to the Applicant’s case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into proper account of relevant COI or being selective or improperly rely on irrelevant COI, or which COI or source of information relied on were outdated that led to the making of groundless speculations.   

17.Nevertheless, given the serious implications of what is at stake in proceedings of this nature, and that the Applicant as a minor at his present age of only 5 years old was without legal representation in his appeal before the Board, nor for that matter is he in the present application before the Court as required under Order 80, rule 2 of RHC, and while his claim is essentially premised on his mother’s claim, high standards of fairness require that the Board’s decision be scrutinized by the Court to see whether there are matters which may support potential minor-specific non-refoulement basis in the Applicant’s case but which the Board might have failed to consider due to his lack of legal representation in his appeal before the Board, as the Court of Appeal so held in Fabio Arlyn Timogan [2020] HKCA 971 at §34 and Re Jasvir Singh [2021] HKCA 53 at §§31 - 33 in setting out the following principles:

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

(2)  Even if the claims are 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 should be dismissed without further consideration of their personal situations;

(3)  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.

18.In the present case of the Applicant, as noted above that he was only born after the Board reached its decision on his mother’s claim in August 2021, and while his claim was premised fundamentally on his mother’s claim of fear of being harmed by her creditor and/or her husband Valentine, it is relevant to also note that in his NCF his mother did in addition also raise her fear and concerns that the Applicant may not be entitled to the welfare and education available in the Philippines due to his lack of birth certificate from the government and/or any issue over his statelessness if refouled to the Philippines, and that he may also face discrimination and be ostracized and bullied as he is not a citizen of the Philippines, as recorded by the Director in his decision at paragraph 8.38:

“In your NCF, your mother stated that if ImmD is going to remove you, you cannot survive because the Philippine government will not look after you for your mother. The government will not give welfare or education to you as you do not have the birth certificate issued by the Philippine government. You will be likely face discrimination, ostracizing and bullying as you are not a citizen of the country. Your mother cannot imagine how you can survive without her in the Philippines. It would be cruel and inhuman to deport you back to the Philippines where you have no family. In light of the aforesaid reason(s), your mother hereby asks for non-refoulement protection for you from the Hong Kong Government.”

19.As noted above that the same Board after dismissing his mother’s appeal in 2021 subsequently did separately consider and determine the Applicant’s claim by holding another oral hearing in 2023 for his mother’s evidence and submissions made on his behalf, and while it made no reference to any of those principles laid down in Fabio supra in its decision, it appears that the Board did refer to some of the claimed risks relevant to the personal circumstances of the Applicant raised by his mother in his appeal as follows:

“The Appellant’s Fear and the Mother’s Fear

47. In the NCF, she stated that she cannot return to the Philippines given the imminent danger. The Mother believes her life will be in danger if she is to be returned to the Philippines. The Mother would be killed by the money lender if she is to be returned to the Philippines.

48. In the NCF, the Mother stated that the Appellant is currently three months old. The Appellant has no connections, no family member and simply no reliance back in the Philippines. The Appellant is also fragile and extremely prone to physical harm, violence and death threats from the enemies (the money-lender and Valentine) against the Mother in the Philippines. It is obvious that the Appellant is unable to protect himself.

49. In the NCF, the Mother stated that Valentine found out that she is living with another man in Hong Kong. Valentine told the Mother before that he would kill her if she returns to the Philippines because she cheated him. Now, the Mother had given birth to the Appellant. If the Appellant returns to the Philippines, the Mother thinks she will certainly be killed by Valentine. The Appellant’s life will be in danger if she is sent back to the Philippines.

50. In the Appellant’s NCF, the Mother stated that the Appellant is still very young, she needs to stay with the Mother as her feeder and primary carer. It will be unimaginably cruel if the Appellant is to be detached from the Mother.”

20.The Board accordingly proceeded to find that there is no evidence indicating that the money-lender or the mother’s husband Valentine had any real intention to harm or kill the Applicant as the former just wanted his mother to repay her debts while the latter did not even know about his birth, and that in any event both state protection and internal relocation alternatives would similarly be available to the Applicant to avoid or negate any such risk upon his return with his mother to the Philippines (see [52] – [58] of decision).               

21.However, it seems to me glaring that the Board somehow did not find it necessary or relevant to consider and assess those additional risks specifically raised by the mother in the Applicant’s NCF and as recorded in the Director’s decision as noted above, as it would have been clear to the Board that the Applicant was born out of wedlock from a mixed race relationship of his Filipina mother and Indian father who is according to the Director’s decision also a non-refoulement claimant that the Board should have but failed to consider and assess whether the Applicant may face any potential risk of racial discrimination or persecution under Persecution Risk in the Board’s assessment of the availability of the internal relocation option within the Philippines.

22.Furthermore, given that it was also clear to the Board that the Applicant was born outside the Philippines and as specifically raised by his mother of her fear or concern over the possible issue of him being treated as stateless without any birth certificate issued by the Philippines government, it seems to me that the Board in its assessment that state protection and internal relocation alternatives would be readily available to the Applicant upon his return with his mother to the Philippines had failed to make any or proper enquiry and/or refer to any relevant COI as to the question of his nationality and/or to determine whether such risk is real that he would indeed be treated as stateless without any birth certificate issued by the Philippine authorities as claimed by his mother, or whether he would be allowed to enter or remain in the Philippines or be entitled to the welfare and education as its citizen in the Board’s consideration and assessment of the Applicant’s minor-specific non-refoulement bases: See Novi Azizah and Ors v Torture Claims Appeal Board [2022] HKCA 1417.        

23.In the premises, and for these reasons I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable on the grounds that the Board had (1) failed to apply high standards of fairness in its separate assessment of his claim with regard to his own personal circumstances and/or his minor-specific non-refoulement grounds as a child born outside the Philippines and out of wedlock from a mixed racial relationship of his parents of different nationality; and (2) failed to separately and specifically deal with the issues of his nationality and/or statelessness in its assessment of the internal relocation alternatives being available to him to return with his mother to the Philippines, and thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung [2007] 10 HKCFAR 676.

24.Accordingly, I grant leave to the Applicant by his mother and next friend to apply for judicial review of the Board’s decision dated 18 May 2023 on the grounds stated above, and direct that he shall file and issue the originating summons within 14 days of this decision and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party, and also direct the Official Solicitor under Order 80 rule 2 of RHC to act for and represent the Applicant to continue with his judicial review application.

Dated the 3^rd day of September 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