Odango Mary Joy Furio and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1861/2025

[2026] HKCFI 5547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1861 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 Applicants 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 as a mere irregularity without rendering the 2^nd Applicant’s application a nullity.

THE APPLICATION

1.The 1^st named is the mother (“the mother”) acting for herself and as the next friend of the 2^nd applicant, her son of 8 years old (“the son”). They are illegal immigrants. The mother gave birth to her son in Hong Kong. In Form 86, the mother has only put her name without the son. Form 86 is amended to include the son’s name.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 9 January 2025 of the Torture Claims Appeal Board (“the Board’s Decision”). The son’s application relies upon the facts of the mother’s non-refoulement claim.

3.The applicants appeared before the Court on 16 September 2026.

The applicants

4.The applicants are nationals of the Philippines.

5.The applicants lodged a non-refoulement claim, on the basis that, if refouled, the mother will be harmed or killed by the mother’s maternal cousins and creditors because she was unable to repay the debt, thereby also subjecting the son to the applicable risks.

6.Details of the facts are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001861_2025_files/the_Board's_Decision.pdf

The Director’s Decision

7.The Director considered the applicant’s 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”).

8.By way of the Notice of Decision dated 19 August 2022 (“Director’s Decision”), the Director dismissed the applicants’ claims on all applicable risks because it was unsubstantiated.

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. There were 4 hearings between 28 June 2023 and 2 December 2024 for the appeal. The mother and the son were represented by a duty lawyer under the Duty Lawyer Service and the Director was represented by 2 government counsel. The mother had given oral evidence before the Board.

10.Having considered the evidence and submissions from the respective parties’ legal representatives, the Board made the findings below.

(1)  As to the mother, there are a number of inconsistencies between her evidence stated in her statement given to the immigration officer and her evidence given before the Board. [49]

(2)  The chance of being harmed by her cousin if she returns to the Philippines is low as her mother had mortgaged her property to repay money to her cousin and she can arrange repayment of the balance of the debt to her cousin by agreement of payment by installments. Further her present boyfriend may also assist her to settle the debt. [53]

(3)  As to the son, he is receiving treatment for autistic problem in Hong Kong. If he returns to the Philippines with his mother, he will also receive treatment from the government or the NGOs. [9], [55] & [61].

(4)  State protection will be available to them in the Philippines, and internal relocation is viable. [61] & [62]

11.For the reasons above, the Board dismissed the appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

12.The applicants filed Form 86 on 20 August 2025 for leave to apply for judicial review of the Board’s Decision.

13.In support of their application, the mother has raised that her life will be in danger and the son’s mental disability will be in issue if they return to the Philippines.

DISCUSSION

14.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).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, to my questions on the child specific issues for the son, the mother said that she had given full instructions to the duty lawyer, who had submitted to the Board for its consideration and there is nothing outstanding as far as the son’s case is concerned.

16.The son was legally represented and the Board had considered the child’s situation separately.

17.Those reasons under paragraph 13 do not constitute valid reasons to challenge the Board’s Decision as they had been considered and rejected by the Board.

18.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.”

19.The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.

DISPOSITION

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

21.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 application a nullity.

Dated the 7^th day of October 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