Manantan, Leani Velasco and Another v. Torture Claims Appeal Board
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HCAL 417/2023 [2026] HKCFI 5767 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 417 OF 2023 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicants: The Leave Application 1.By way of Form 86 dated and filed on 20 March 2023, the applicants applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 14 February 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink: 2.The Board found that the applicants were not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicants’ appeals/petitions against the decision of the Director of Immigration (“the Director”) dated 9 June 2021 and confirmed the same, which rejected the applicants’ non-refoulement claims. Amendments 3.The applicants’ names were not stated properly in Form 86. Thus, on this court’s own motion, “Manantan, Leani Velasco” is named as the 1st applicant. The other applicant, Hossain Md Afnan Raiyad, who is the 1st applicant’s son and a minor, is named the 2nd applicant. The 2nd applicant is represented by the 1st applicant as his next friend and his name is amended to “Hossain Md Afnan Raiyad (a minor) by Manantan, Leani Velasco, his next friend” on this court’s own motion. 4.In Form 86, the applicants named “tORTURE CLAIMS APPEAL BOARD non-REFOULEMENT CLAIMS PETITION OFFICE” as the 1st the putative respondent and the Director as the 2nd putative respondent. They also named “TORTURE CLAIMS APPEAL BOARD / non-REFOULEMENT CLAIMS PETITION OFFICE” as the 1st the putative interested party and the Director as the 2nd putative interested party. 5.In fact, only the Board should be named as the putative respondent, and only the Director should be named as the putative interested party. 6.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative party at all. 7.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and the name of the putative interested party is amended to “Director of Immigration”. Legal representation of the 2nd applicant 8.The 2nd applicant is a minor born in Hong Kong out of wedlock on 18 September 2020 and is represented by the 1st applicant in the Leave Application. 9.The 1st applicant applied for legal aid for the 2nd applicant, but the application was refused by the Director of Legal Aid on 8 September 2026. 10.At the hearing before this court on 8 October 2026, the 1st applicant confirmed that she would not engage a private lawyer to represent the 2nd applicant. 11.As the 2nd applicant was legally represented before the Director, and no new evidence would be advanced in the Leave Application, this court considered that the lack of legal representation for the 2nd applicant in the Leave Application was a mere irregularity and it would not prejudice the 2nd applicant. Hence, this court waived the irregularity and proceeded to deal with the Leave Application. The applicants’ case 12.It is not necessary for this court to repeat the details of the applicants’ case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above. 13.As summarised by the Board in paragraph 6 of the Board’s Decision, the applicants’ case was based on the 1st applicant’s claim that if she returned to the Philippines, she and her son, ie the 2nd applicant, would be harmed or killed by her ex-partner, Mr Peter Morales (“Peter”), due to her relationship with another man and the birth of the 2nd applicant in Hong Kong. 14.The 1st applicant further stated that the Philippines was one of the most violent countries in the world as many citizens were kidnapped, raped or killed because of uncontrollable political violence, lawlessness and high levels of corruption in the government. The 1st applicant did not believe that the government could guarantee the safety of her and the 2nd applicant (see paragraph 44 of the Board’s Decision). 15.At the time when the applicants’ cases were assessed by the Board, the 1st applicant also claimed that the 2nd applicant might have autism (see paragraph 50 of the Board’s Decision). Oral hearing 16.The applicants requested for an oral hearing of the Leave Application and their cases were heard on 8 October 2026. 17.As aforesaid, the 2nd applicant is a minor and was represented by his mother, ie the 1st applicant, at the hearing. 18.The 1st applicant had attached a document with the title “GROUNDS OF APPEAL FOR MANANTAN, LEANI VELASCO / HOSSAIN, MD AFNAN RAIYAD” to her supporting affirmation dated 20 March 2023. When this court asked the applicants to elaborate on the grounds of their intended judicial review contained in the said document, the 1st applicant said that she and the 2nd applicant would rely on the document, and added that there were threats from her ex-partner who had physically hurt her. She said that the situation of herself and the 2nd applicant was the reason for the intended judicial review. 19.In respect of the 2nd applicant’s case, the 1st applicant said that the 2nd applicant had been diagnosed with autism and late development. The 2nd applicant might get bullied and might not get proper education if he was to return to the Philippines. She wanted the 2nd applicant to stay in Hong Kong as the government of Hong Kong provided good support. 20.The 1st applicant confirmed that the father of the 2nd applicant is a Bangladeshi who is a non-refoulement claimant as well. He is still in Hong Kong and the applicants are still with him. However, the 1st applicant said that if she was to return to the Philippines, the 2nd applicant would return with her and would not go with his father. She added that she would like to focus on the 2nd applicant and to take good care of him. Grounds for judicial review 21.The applicants are required to identify clearly the grounds for their intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 22.The 1st applicant had attached a document with the title “GROUNDS OF APPEAL FOR MANANTAN, LEANI VELASCO / HOSSAIN, MD AFNAN RAIYAD” and a copy of the birth certificate of the 2nd applicant to her supporting affirmation dated 20 March 2023. 23.Under the heading “BASIS OF THE CLAIM” in the said document, the applicants asserted that:-
24.In the same document under the heading “GROUNDS OF APPEAL”, the applicants advanced 5 grounds, which are summarised as follows:-
25.As mentioned, at the oral hearing, the 1st applicant confirmed that she and the 2nd applicant would rely on the grounds mentioned in the said document. She added that the 2nd applicant had been diagnosed with autism and late development. The 2nd applicant might get bullied and might not get proper education if he was to return to the Philippines. She wanted the 2nd applicant to stay in Hong Kong as the government of Hong Kong provided good support. Discussion 26.First of all, the applicants’ danger upon returning to their country had been duly assessed but rejected by the Board. If the applicants intend to challenge the Board’s finding of facts, it is not permissible in an application for judicial review unless there were errors of law, procedural unfairness or irrationality in the Board’s Decision. 27.Thus, ground (1), the 1st part of ground (2) in relation to the threat by Peter or his family, and ground (5) under the heading “GROUNDS OF APPEAL” are not arguable. This court finds no flaw in the Board’s findings in relation to the applicants’ risk arising from Peter’s threats. 28.The applicants mentioned in the 2nd part of ground (2) that the 1st applicant’s family could not and would not protect the applicants because they also resented what the 1st applicant did. However, this court notes that this matter had not been presented to the Board for assessment. 29.As can be seen from the Board’s Decision, it was the 1st applicant’s case that her children born to Peter continued to live with the 1st applicant’s own family and the 1st applicant never raised the issue that her own family resented her for what she had done. 30.Whilst the 1st applicant told the Board that her family members were busy with their own lives, her evidence did not indicate that they would refuse to support her or the 2nd applicant. The Board was not satisfied that the 1st applicant’s evidence indicated that her mother would refuse to provide her with assistance upon her return to the Philippines with the 2nd applicant (see paragraph 88 of the Board’s Decision). 31.The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage. 32.Thus, the second part of ground (2), namely that the 1st applicant’s family could not and would not help the applicants, cannot be a valid ground to challenge the Board’s Decision. 33.The applicants’ first assertion under the heading “BASIS OF THE CLAIM” and ground (3) under the heading “GROUNDS OF APPEAL” are both related to the applicants’ challenge regarding the Board’s finding on the availability of state protection. 34.This court notes that the Board had discussed extensively the situation of domestic violence, the availability of state protection in the Philippines for women at risk of domestic violence, the setting up of “women’s desks” that would address crimes against women and children in all police stations, the possibility of women who experienced domestic violence to apply for a Barangay Protection Order, and the implementation of various laws by the Philippines government to protect women and children from violence, etc in paragraphs 63 to 71 of the Board’s Decision. 35.This court is of the view that the Board was justified to conclude that although violence against women had continued to be an issue of considerable concern in the Philippines, the Filipino state had in place a system of domestic protection in the form of various laws, protection orders, women’s shelters and various hospital and social services to assist women, and that there had been numerous legislative changes to punish the perpetrators of domestic violence and to protect women. 36.Thus, the applicants’ first assertion under the heading “BASIS OF THE CLAIM” and ground (3) under the heading “GROUNDS OF APPEAL”, both of which challenge the Board’s finding on state protection, are without any merits. 37.The applicants’ second assertion under the heading “BASIS OF THE CLAIM” was that the 2nd applicant suffered from autism disorder, and children suffering from this mental disability require more attention and care, and their needs are unlike those of normal children. The 1st applicant also said at the oral hearing before this court that the 2nd applicant had been diagnosed with autism and late development, he might get bullied and might not get proper education if he was to return to the Philippines. 38.This court notes that at the time of the Board’s assessment of the applicants’ appeals/petitions, the 2nd applicant had not yet been diagnosed with autism and his condition was still under investigation. Nevertheless, the 1st applicant had raised to the Board that the 2nd applicant might suffer from autism and developmental disorder. The Board considered this aspect of the applicants’ claim and informed the 1st applicant at the Board’s hearing that there was medical care and treatment in the Philippines (see paragraph 51 of the Board’s Decision). 39.The Board had also explicitly stated in paragraph 87 of the Board’s Decision that it was not satisfied that the 2nd applicant would be unable to obtain medical treatment or assistance should he unfortunately be diagnosed with autism at some time. The reasons for this conclusion were laid out in the same paragraph of the Board’s Decision, and it was not necessary to repeat the same here. 40.With regards to the possible discrimination that the 2nd applicant might face, the Board had addressed the 2nd applicant’s risk of being discriminated as a child of mixed race and an illegitimate child in paragraphs 84 and 85 of the Board’s Decision respectively. In short, while the Board accepted there would inevitably be some challenges, difficulties or even low-level discrimination, the Board was not satisfied that they would be of such severity that they rose to the level of harm required to warrant international protection on any of the applicable grounds under the USM. 41.This court is of the view that the Board’s conclusions in these regards were reasonable. 42.As to the 1st applicant’s concern about the education of the 2nd applicant, which she raised at the oral hearing before this court, the Board had also found no evidence that the 2nd applicant, being a Filipino national, would be unable to enjoy the same rights and benefits of health, housing and education as other Filipino national (see paragraph 83 of the Board’s Decision). 43.Hence, the 1st applicant’s concern over the need of the 2nd applicant as a result of autism, had been addressed by the Board, despite that the 2nd applicant was not yet diagnosed with such a condition at the material time. Since the 2nd applicant was not yet diagnosed with autism when the Board was considering his case, there was no need for the Board to consider whether the 2nd applicant would be bullied because of this condition. 44.In ground (4) under the heading “GROUNDS OF APPEAL”, the applicants seek to challenge the Board on the issue of internal relocation. However, the Board did not make any explicit findings on the viability of internal relocation for the applicants. In fact, after its comprehensive review of the applicants’ case, the Board was of the view that it was not satisfied that there were substantial grounds for believing that there was a real risk the applicants would suffer any of the proscribed forms of harm, and that, as aforementioned, state protection was available to them from the Filipino authorities. Hence, the Board found that the applicants were not entitled to non-refoulement protection in Hong Kong. Their appeals/petitions were not refused because internal relocation was a viable option for them. 45.The 1st applicant’s wish for the 2nd applicant to receive education in Hong Kong is not a ground for judicial review at all. 46.Therefore, all the grounds that were raised in the applicants’ document with the title “GROUNDS OF APPEAL FOR MANANTAN, LEANI VELASCO / HOSSAIN, MD AFNAN RAIYAD” and the issues raised by the 1st applicant on behalf of herself and the 2nd applicant at the oral hearing before this court, cannot amount to any valid ground to challenge the Board’s Decision. 47.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524). 48.Thus, it is not for this court to re-assess the applicants’ cases or their danger upon refoulement to the Philippines. This court will only scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality. 49.In assessing the 1st and 2nd applicants’ appeals/petitions, the Board held an oral hearing on 17 October 2022. The applicants were present and the 2nd applicant was represented by the 1st applicant. 50.The Board was apparently cognizant of the principles set down by Fabio[1] that consideration should be given to providing legal representatives to minors in appeal proceedings before the Board, and had on its own motion requested advice from the Duty Lawyer Service as to whether representation would be provided to the 2nd applicant in the Board’s proceedings. However, the Duty Lawyer Service advised the Board on 15 September 2021 that they would not provide legal assistance to the 2nd applicant. 51.As can be seen from the Board’s Decision, the Board had extensively analyzed every aspect of their claims and provided full and detailed reasoning in rejecting their claims for non-refoulement protection. 52.The Board was fully aware that the 2nd applicant’s case required a separate assessment of the risk of harm faced by a child having regard to his personal circumstances and the possibility of any child-specific risk of harm or discrimination (see paragraphs 81 to 88 of the Board’s Decision, which specifically addressed the 2nd applicant’s claims). 53.The Board had laid out its consideration of the applicants’ claims and evidence in paragraphs 74 to 80 (for the 1st applicant) and paragraphs 81 to 88 (for the 2nd applicant) of the Board’s Decision. It is therefore unnecessary for this court to repeat the same here. 54.In gist, the Board had accepted that Peter was in the past violent towards the 1st applicant, but whilst not wishing to minimize the 1st applicant’s experience, the Board had found that it occurred in a domestic context and that he had shown no intention to pursue the 1st applicant since her departure from the Philippines. The Board was not satisfied that upon her return to the Philippines that there was any evidence Peter would pursue her, even though she had a child with another man. 55.The Board was also not satisfied that Peter would seek to harm the 2nd applicant. While the Board had accepted that Peter would undoubtedly experience some level of disquiet in relation to the birth of the 2nd applicant, the 1st applicant and Peter had not been in a spousal relationship for some years. The applicants would also have the support and assistance of the 1st applicant’s family members. 56.Furthermore, the Board found that state protection was available for women and children who were the unfortunate victims of domestic violence. 57.With regards to the 2nd applicant’s case, this court notes that the 2nd applicant’s specific risk as a child of mixed-race and as an illegitimate child, and also his needs if he was diagnosed of autism, as well as his ability to access the benefits of health, housing and education had been fully addressed by the Board. 58.Thus, the Board had fully considered all the child-specific risks of the 2nd applicant, given separate consideration to the personal circumstances of the 2nd applicant, separately from the 1st applicant. 59.The Board had also had regard to the applicants’ claims that the Philippines was the “most violent country”. Whilst the Board accepted that several security issues affected the Philippines at the material time, ranging from petty crime, violent crime and terrorism, the Board was not satisfied that the 1st applicant’s evidence indicated that she had been the victim of those types of crimes in the past or that there was a real chance or strong grounds for believing that she or the 2nd applicant would be affected by them in the future. 60.Hence, the Board concluded that both the 1st and 2nd applicants were not entitled to non-refoulement protection under any of the applicable grounds. 61.Although the Board did not consider internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicants have established that they qualify as refugees pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicants have established a real risk of persecution in their home area (see Gardi v SSHD [2002] 1 WLR 2755). 62.As it is the Board’s finding that the applicants had no real risk of any of the proscribed forms of harm from the Peter or anyone else in the Philippines, it is not necessary for the Board to consider internal relocation. 63.The finding of facts, including assessment of evidence, country of origin information and risk of harm, was solely within the ambit of the Board in dealing with the applicants’ appeals/petitions. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 64.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 65.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicants have failed to establish such a claim and hence leave must be refused. Conclusion 66.For reasons aforesaid, the Leave Application in respect of both the 1st and 2nd applicants is dismissed. Dated the 14th 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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