Pugong Charline Dulnuan and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1927/2019 [2026] HKCFI 5599 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1927 of 2019 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord 53 r 3) Following;
Order by Deputy High Court Judge To:
Observations for the Applicants: Introduction 1.This is the Applicants’ application by Form 86 filed on 9 July 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 29 April 2019 (the “Decision”) dismissing their appeals against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 2 January 2018 refusing their application for non-refoulement protection (the “Notice”). 2.The Applicants advanced three grounds of application: (1) the Fabio ground; (2) error of law in assessment of pain and suffering; and (3) failure to conduct an oral hearing. The background 3.The 1st and 2nd Applicants are Filipino nationals, now respectively aged 42 and 9. The 1st Applicant is the mother (the “Mother”) of the 2nd Applicant (the “Daughter”). The Mother is married and has three children with her husband (the “Husband”). She came to work in Hong Kong as a foreign domestic helper in 2011 and overstayed since 14 August 2014 after her employment was terminated. She surrendered to the Immigration Department on 29 September 2016 and lodged a non-refoulement claim by written signification on 24 and 30 November 2016. Then she gave birth to the Daughter out of wedlock on 6 December 2016. She also lodged a claim on behalf of her Daughter on 12 June 2017. Their claims were assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”) and rejected by the Director. They appealed. Their appeal was dismissed by the Board’s Decision. They now apply for leave to apply for judicial review of that Decision. The Applicants’ case 4.The factual background leading to the present application, the basis of the Applicants’ claim, the arguments they advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[1] for reference. In gist, the Applicants claim they will be killed by Carinio because the Mother had witnessed his killing of an unknown man in 2008 (the “Incident”) and by the Husband because of the Mother’s extra-marital relations and birth of the Daughter out of wedlock. 5.The Mother used to work with her Husband as caretakers in a resort owned by CHING Carinio (“Carinio”), whom the 1st Applicant claimed is a powerful and dangerous person involved in illegal activities. On 8 May 2008, the Mother witnessed Carinio killed an unknown man with a gun, ie the Incident. After the Incident, the Mother and staff who witnessed the Incident were warned by Carinio’s men to kept silent otherwise they would be killed. To ensure the Incident would not be leaked, the staff including the Mother were not allowed to resigned. 6.The Husband had become violent and abusive towards the Mother since the birth of their first child in 2005. He harassed her, humiliated her publicly and forced her to have sex. On one occasion in early 2010, he even agreed, while under the influence of drugs, with his friends for they to have sex with her for reward, which created a near rape incident. The Mother was rescued by her neighbours. She made a complaint to the Bayombong Police Station. The police arrested her Husband but released him after three days’ detention. The police considered her dispute with her Husband a family dispute which should be resolved between her and her Husband. After his release, her Husband escalated the ill-treatment on the Mother, including cutting her hand and harassing her relatives who sheltered her. The Mother was forced to live with her own mother or her in-laws. Since then, she had not seen her Husband much. 7.After giving birth to her third child, the Mother came to work as a foreign domestic helper in Hong Kong in June 2011. She was allowed to leave the resort because Carinio’s wife would earn a huge reward by lending her 29,000 Philippine Pesos for arranging her employment in Hong Kong. In return, the Mother paid Carinio’s wife 10,000 to 15,000 Philippine Pesos every month out of her salary earned in Hong Kong. 8.The Mother started a romantic relationship with a Bangladesh non-refoulement claimant in January 2014. She resigned in July 2014 but was unable to find another employer. She became pregnant in 2016. Out of good intention, her cousin informed her family in the Philippines about her pregnancy. Upon hearing the news, the Husband became furious. He called the Mother and threatened to kill her and the Daughter, if they return to the Philippines. 9.In December 2014, the Mother learned from her mother-in-law that one of her colleague, Liza, who also witnessed the Incident was found dead in the resort. She believed Liza was killed because she requested to leave the resort for holidays. She suspected Carinio had started to silent people who witnessed the Incident by killing them. 10.On 1 December 2016, while the Mother was in hospital for confinement, she was informed by her sister that their father (the “Grandfather”) who had gone to the resort to pick up her children after swimming was found dead in the resort in November 2016. The Mother also heard from her friend that her Husband had badmouthed her before Carinio. She believes her Husband had planned with Carinio to kill the Grandfather because he had disputes with the Grandfather about his visiting their children and as a revenge for her extra-marital affairs and pregnancy. The Board’s finding 11.The Board did not consider it necessary to hold an oral hearing and proceeded to determine the appeal on paper. It assessed the Applicant’s claim on the basis of the case as she asserted. It was unable to accept the Mother’s fear of harm from Carinio because the threats were merely verbal; she had not suffered any physical injuries, severe pain or severe suffering; she was allowed to leave the resort; and there was no evidence that Carinio had direct nexus with Liza’s or the Grandfather’s death. The Board was also unable to accept the Mother’s fear of harm from her Husband because his threats were merely verbal and she never suffered any serious injuries occasioned by him. It also found no evidence that the government or the state was involved in the ill-treatment of the Mother by Carinio or the Husband or acquiesced in their ill-treatment of the Mother. 12.The Mother argued she could not access state protection. She said the police would not help her. They released her Husband despite her complaint and produced no concrete result for Liza’s death. She said Carinio was rich and powerful and could pull strings within the police to handle complains in his own way. The Board rejected her argument as unsupported by evidence. It found the police actually arrested her Husband and detained him. It was only that she did not pursue her complaint about the new ill-treatmnet and harassment or to complain to the higher authorities. The Board found on the basis of credible country of origin information (“COI”) that reasonable state protection is available. Despite corruption, incompetency and ineffectiveness in the police, the COI show that the Philippine government has done much to improve the situation. It carried out reforms, professionalised the police, combated corruption, established the office of the Ombudsman and created channels for filing complaints against the government or the police for malpractice. 13.Given the geographical and population size of the Philippines, the Board found it would not be unduly harsh for the Mother to relocate with the Daughter to locations such as Manila and Quezon to avoid the risk of harm from Carinio and her Husband. 14.Applying the law applicable to non-refoulement protection, the Board found the Applicants were not entitled to protection under any of the applicable grounds under the USM. Hence, it dismissed their appeal. Ground (1) – the Fabio ground 15.The Decision was issued by the Board on 29 April 2019. The Board did not have and could not have had the benefit of the Court of Appeal decision in Fabio Arlyn Timogan v Evan Ruth Esq[2]. In Fabio, the Court of Appeal held that non-refoulement claims by children are separate claims from similar claims of their parents. In principle, decision-makers should consider each claim by reference to the personal circumstances of each claimant. Even if the claims were based on the same set of primary facts, it would be an error of law if the decision‑maker decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. Decision‑makers should bear in mind that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child. When dealing with leave application by an unrepresented minor, the court needs to examine, in the context of the requisite high standard of fairness, whether the minor’s own non-refoulement claim has been properly considered by the Board as a separate claim having regard to his own personal circumstances. In so doing, the court should consider whether there exist matters that may provide potential minor‑specific bases for a non-refoulement claim which have not been advanced or properly advanced before the Board due to the absence of legal representation. 16.In Siti Naisah Tasya Stephanie v Torture Claims Appeal Board[3], the Court of Appeal held that while the basis of a minor’s claim may be based on that of his parent’s, the Board’s jurisdiction under the statutory scheme is not restricted to the parameters of what was presented in the non-refoulement claim form and the court has a positive duty to conduct its enquiry so as to ensure that the non-derogable rights are given meaningful protection. 17.Reading the Decision, this Court agrees with Miss Chan, counsel for the Applicants, that it is at least reasonably arguable that the Board treated the Applicants’ claims as one composite claim and did not treat the Daughter’s claim as one which is separate from the Mother’s. The Daughter was not only born out of wedlock, but is also of mixed race. She may have distinguishable complexion and facial features which stand her out among her peers and create risks of discrimination. Such risks may not be apparent to the Mother representing her or may not be raised by her due to the absence of legal representation. In the performance of its duty of joint endeavour, the Board should have considered whether there was any such potential minor-specific bases for a non-refoulement claim arising from the personal circumstances of the minor: see Re Siti Naisah, Mujiati Lestari v Torture Claims Appeal Board[4] and Re Salfitri[5]. This ground is only applicable to the Daughter’s leave application, but not to the Mother’s. Ground (2) – Error of law in assessment of pain and suffering 18.Miss Chan referred the Court to seven occasions when the Board emphasised that the threats by Carinio and the Husband were merely verbal and the absence of physical injuries or harm inflicted on the Mother as support for its finding that Carinio and the Husband had no intention to seriously harm or kill the Applicants and not accepting the Mother’s fear. 19.It is well-established that there is no requirement for a claimant to show past ill-treatment or severe injury or serious harm in order to establish risk of future harm: AM v Director of Immigration[6]. Past ill-treatment, severe injury or serious harm is just some evidence on which a court may infer a risk of future harm. Risk has to be assessed on the basis of all surrounding circumstances when the threat was made and the person making the threat. Threat from a gangster with known record of violence deserves more respect than that from a person with good characters or someone who is used to uttering threats as a casual expression of anger or in the heat of the moment. Threat from a person holding a gun carries more weight than that from an unarmed person. On the Mother’s evidence, she saw a man being unloaded from a van and tortured by Carinio’s bodyguards. Then, Carinio appeared, he argued with the man and finally shot him twice in the chest. Accepting the Mother’s evidence of what she saw was true and her knowledge or even her belief that Carinio is a powerful criminal, it would be a fool if she did not take Carinio’s threat seriously. The same applies to the Board’s finding on the Mother’s fear of risk of future harm from her Husband, albeit with lesser force. Though the Mother had not suffered serious harm from her Husband in the past, her Husband escalated ill-treatment on her and harassed her relatives after she reported on him and badmouthed her before Carinio after Liza was alleged killed by Carinio, and now she provoked him with her extra-marital affairs and with her birth to a child out of wedlock. These facts must be viewed as part of the circumstances when the Husband’s threat was made and should not be lightly dismissed due to absence of past serious harm. 20.But, be that as it may, even if the Board were to find there was a real risk of harm of the requisite level of severity, this finding may not have any consequence or impact on its ultimate decision. This is because the Board had found adequate state protection and internal relocation are accessible to the Mother. Though it is arguable that the Board erred in law in its assessment of risk of future harm, insofar as the Mother is concerned, the mistake has no consequence or impact on the Decision because of availability of state protection and internal relocation. However, for the Daughter, as her child specific risks have not been fully assessed, the Board’s finding on state protection and internal relocation is inadequate. Ground (3) – Failure to conduct an oral hearing 21.Having read the Decision and the papers and having directed its mind to the Court of Appeal decision in ST v Betty Kwan & Ors[7], the Board considered that the Applicants had not made out their case and that their case could be disposed of on paper without a hearing. 22.The Board had considered the six-point test and answered the six questions all in the negative before deciding to make a determination on paper. It then proceeded to assess the Applicants’ claim on the basis of the case as the Mother had asserted. It accepted in toto the Mother’s allegations against her Husband and against Carinio. It accepted Carinio had verbally threatened the Mother but she did not suffer any physical injuries from him or his men. It found no evidence that Carinio had intention to harm or kill the Mother. It accepted her case about her Husband but she did not suffer any serious injuries from him. It accepted the Grandfather’s and Liza’s death in the resort. The Mother said she does not know anything about the investigation process of Liza’s death and there was no result about the investigation of her father’s death. The Board considered there is nothing more for the Mother to tell about their case. 23.While accepting that the Applicants have no absolute right to an oral hearing, Miss Chan submits that fairness requires that a person, in most if not all situations, should be given an opportunity to make worthwhile or effective representations before a decision which he will be adversely affected by is taken against him. She referred to the six-point test in ST v Betty Kwan & Ors and submits that the high standards of fairness require the Director, or the Board for that matter, to adopt an active role in screening a torture claim and that they are not permitted to simply sit back and put the claimant to strict proof of his claim. She referred to two instances in which the Board’s view is material to the determination of the Applicants’ claim and which she submits the high standard of fairness would require the Board to raise further questions and to give the Mother an opportunity to be heard orally. 24.First, Miss Chan referred to the Board’s emphasis that the Mother was allowed to come to Hong Kong for employment as part of the reason for finding that Carinio had no intention to harm or to kill her. She submits that while accepting Carinio had killed Liza six years after the first killing, there was, however, no analysis on the impact of the killing of Liza on the Mother’s risk. With respect to Miss Chan, the Board had not accepted that Carinio had killed Liza. The Board accepted that the Mother gathered from her mother-in-law that Liza was killed in the resort. It accepted that the Mother does not know anything else about the latest investigation process of Liza’s case. It accepted there was no evidence showing that Carinio had direct relationship with the Grandfather’s death[8]. Seemingly the Board accepted second-hand hearsay evidence from the Mother that Lisa was killed in the resort and that there was no concrete result as to the cause of her death from the police enquiries. Although it did not make an express finding that there is no evidence that Carinio had direct relationship with Liza’s death as it did in relation to the Grandfather’s death, it quoted the Mother’ acknowledgement that there was no result about the cause of Liza’s and her father’s death from the police enquiries[9] which indicates its acceptance of the same. Obviously, the Board did not deal with the impact of any finding that Carinio had killed Liza because it had not made such a finding and it gave no weight to the second-hand hearsay gathered by the Mother’s mother-in-law from unidentified sources. 25.It is obvious that the Mother raised Liza’s death in her non-refoulement claim form for the purpose of showing that Carinio’s threat is very much alive and that she is in the same situation. At the screening interview, the Mother was asked her reasons for speculating that Liza’s death was caused by Carinio. She replied “as far as I know, Liza was a witness about the killing, and she was still working there when she was murdered. She was only asking for holidays to visit her parents, just to the other nearby village. I think Liza voiced out to her parents about the killing. Carinio would think Liza would tell other people.”[10] Thus, the Mother had told the immigration officer her concern arising from Liza’s death and therefore the Board was aware of the Mother’s concern. It was aware of the inference which the Mother wanted the Board to draw and the hearsay nature of the evidence on which such inference was based. It was aware that the Mother could not give any further information and that the information given by the Mother was second-hand hearsay from unidentified sources. The Board’s refusal to draw the inference is evidenced by its failure to mention the impact now complained of by Miss Chan. What inference to draw and whether to draw the inference is a finding of fact solely for the Board. Given the nature of the evidence which the Mother was able to give, it would serve no purpose to call the Mother to testify. 26.The Board’s refusal to draw the inference could not be challenged as irrational as the evidence on Liza’s death is second-hand hearsay, vague and did not even appear to be complete or reliable. There was no information even on the immediate or apparent cause of death, such as by gunshot as in the case of the Grandfather’s death, or other common causes such as falling from height, asphyxia by hanging or drowning, heart attack or other medical condition, which would usually be available had there had been a police enquiry. 27.Second, Miss Chan submits that as the Board placed substantial reliance on the absence of any investigation result establishing that the Grandfather’s death had been planned by the Husband and Carinio and given the Board’s acceptance of the dispute between her husband and her father concerning his visits to the children, it is at least reasonably arguable that the Board ought to have held an oral hearing. Such hearing would have enabled it to clarify and inquire into whether there were further matters supporting the Mother’s suspicion that her Husband and Carinio were involved in her father’s death. With respect this is just a fishing exercise. 28.Miss Chan also submits that an oral hearing might allow the Board to inquire into whether the Mother would be relying on her commission of adultery and whether there was in fact allegation of adultery from the Husband and if any report was filed. The Mother was legally represented before the immigration officer at the screening interview. If that was her case, she should have raised it. It never was the Mother’s case that her Husband had threatened to report to the authority about the Mother’s adultery. Even if he would, non-refoulement protection only protects victims of injustice and not fugitives from justice. If the Mother had committed a crime which is punishable in her home country, she has to face the consequence. Besides, to the Court’s knowledge, adultery is punishable in the Philippines by a term of imprisonment and not by death which might invoke BOR 2 risk ground. 29.On behalf of the Daughter, Miss Chan submits that an oral hearing might allow the Board to inquire the issue whether the possible lack of welfare for her, should she be refouled, would be a ground for non-refoulement protection. In view of the Court’s finding that the Daughter’s child specific risks had not been properly considered, this issue will be considered in substantive hearing anyway. 30.Next, Miss Chan submits that an oral hearing might allow the Board to inquire into the nationality of the Daughter and whether she could relocate to the Philippines with her Mother if in the Board’s assessment that internal relocation would be available to both of them. The Mother should take a position as to the nationality of her Daughter in the substantive hearing. If she accepts that the Daughter is entitled to Philippine nationality, Miss Chan’s submission is redundant. If she claims the Daughter is stateless or is entitled to residence in Hong Kong, she should adduce such evidence and be prepared for such argument. If either of her claims is established, the question of relocation to the Philippines will not arise. It would not have been necessary for her to make a claim for non-refoulement protection. Overall scrutiny 31.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board found the 1st Applicant failed to discharge her burden of proving her fears and risks. The proposed judicial review of the 1st Applicant has no realistic prospect of success. Except for the child specific risks relating to the 2nd Applicant, the Court could identify no errors of law or procedural unfairness. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. For the above reasons, the leave application of the 1st Applicant is refused while the leave application of the 2nd Applicant is allowed. The Court orders that there be no order as to costs, save the 2nd Applicant’s own costs shall be taxed in accordance with Legal Aid Regulations. 32.The 2nd Applicant is reminded to comply with the directions below and within the specified time limits. Dated the 8th 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
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