Cabornay Evelyn Quinawayan Acting As the Next Friend of Mohammed Noor Fatima Cabornay v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1973/2023

[2026] HKCFI 5619

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1973 of 2023

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 Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

1.  Leave 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 Applicant’s application a nullity.

Observations for the Applicant:

THE APPLICATION

1.The 1^st named is the mother (“the mother”) acting as the next friend of the applicant, her daughter born on 12 January 2021 (“the daughter”). They are illegal immigrants. The mother gave birth to the daughter in Hong Kong.

2.The daughter applies for leave to apply for judicial review of the Decision dated 20 October 2023 of the Torture Claims Appeal Board (“the Board’s Decision”). Her application relies upon the facts of the mother. The mother’s non-refoulement claim previously had failed.

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

4.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 applicant

5.The applicant is a national of the Philippines, adopting the mother’s nationality.

6.The applicant lodged a non-refoulement claim, on the basis that, if refouled to India together with her parents, she will be harmed or killed by her father’s younger sister’s ex-finance, Faiz, because of a grudge between her father and Faiz who was engaged to marry her father’s younger sister, but married another girl. If she returned to the Philippines with her mother, she will be harmed or killed by the New People’s Army (“NPA”) because her mother had passed the illegal activities of NPA to police, and police had arrested some of its members.

7.Details of the facts are set out in the Board’s Decision. See hyperlink.

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001973_2023_files/the_Board's_Decision.pdf

The Director’s Decision

8.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”).

9.By way of the Notice of Decision dated 23 August 2021 (“Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 28 August 2023, the Board conducted an oral hearing for the appeal. The mother had given evidence and answered the Board’s questions.

11.Having considered the evidence, the Board found that Fiaz only targeted her father, not anyone else in the family [74]; that the NPA only targeted the mother, not anyone else in the family [77] & [78]; and that internal relocation is viable in India or in the Philippines.

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

Application for leave to apply for judicial review

13.The applicant filed Form 86 on 2 November 2023 for leave to apply for judicial review of the Board’s Decision.

14.In support of her application, the mother has raised the grounds to challenge the Board’s Decision that the Board’s Decision is unfair and unreasonable; and that the adjudicator failed to give her sufficient time of arrange the relevant evidence in support of the appeal.

DISCUSSION

15.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).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. It is clear that the Board had born in mind the guidelines laid down by the Court of Appeal in Fabio Arlyn Timogan & Others v Evan Ruth, Esq. Adjudicator of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office & Another [2020] HKCA 971. Before me, I asked the mother if there were any child specific issues, which were not put to the Board for consideration because they were not legally represented. The mother stated that there will be bullying of her daughter; that her growth will be affected; that as she is autistic, there will not be same therapy in the Philippines for her medical welfare.

17.The Board had considered the child’s situation separately.

18.Those reasons under paragraph 16 do not constitute valid reasons in support of the daughter’s claim. Bullying is not one of the applicable risks. Medical facilities is not a valid ground in support of her application.

19.I do not find any potential non-refoulement grounds relating to the daughter, but which had not been advanced to the Board or considered by it because of lack of legal representation. In my view, the Board’s Decision bears no error in law or any procedural irregularity, and its decisions are not irrational.

20.The daughter therefore fails to show that there is any realistic prospect of success in the proposed judicial review.

DISPOSITION

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

22.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the daughter’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