Fuentes Aime Denosta v. Torture Claims Appeal Board
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HCAL 1902/2023 [2026] HKCFI 5758 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1902 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 applicant: The Leave Application 1.By way of Form 86 dated and filed on 20 October 2023, the applicant 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 2 March 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 2 August 2022 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim. Amendments 3.In Form 86, the applicant named “Torture Claims Appeal Board Non-Refoulement Claims Petition Office” as both the putative respondent and the putative interested party. 4.In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party. 5.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. 6.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and the name of the putative interested party to “Director of Immigration”. Late application 7.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. 8.However, the applicant filed Form 86 on 20 October 2023, which was more than 7 months after the Board’s Decision (made on 2 March 2023). The applicant was hence late for more than 4 months in making the Leave Application. 9.This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:
10.The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. At the oral hearing before this court on 8 October 2026, the applicant explained the delay by saying that her son had Down Syndrome and she needed to stay in the hospital with him after he had a surgery. She also needed to bring him to hospital 2 to 3 times a month. However, the applicant said that her son underwent surgery in September 2024. 11.A delay of more than 4 months is substantial, and the explanation given by the applicant at the oral hearing was not satisfactory. Even if she needed to take her son to hospital regularly, she could and should have made the Leave Application in time. Moreover, her son’s surgery was in September 2024, which was about 1.5 years after the Board’s Decision. The applicant could not use this as an excuse for the delay in making the Leave Application. More importantly, there is no merit in the Leave Application at all as discussed below. 12.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone. 13.However, for the sake of completeness, this court will still deal with the Leave Application as discussed below. The applicant’s case 14.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above. 15.In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, she would be harmed or killed by her parents, her sister Nornalyn, her brother Ramil, and her husband Moises Caraz, as she had given birth to a son with another Filipino whom she met in Hong Kong. Her family expressed feelings of shame, and threatened to kill the applicant if she returned to the country. Her husband questioned the applicant’s reasoning for using his family name on the passport of the applicant’s son born in Hong Kong with another man, and he made death threats to the applicant. Oral hearing 16.The applicant requested for an oral hearing of the Leave Application and her case was heard on 8 October 2026. 17.When this court asked the applicant for the grounds of her intended judicial review, the applicant merely told this court that her ex-husband threatened to hurt her. 18.When this court asked her what was wrong with the Board’s Decision, she only said that she would like to stay in Hong Kong longer due to her son’s situation, and her son could receive the best education and medical treatment here. The applicant added that if she was to be returned to the Philippines, she would like it to happen after the second surgery of her son. 19.The applicant confirmed that the biological father of her son in Hong Kong is also a Filipino, who is currently working in Hong Kong as a foreign domestic helper. The son’s father has his own family in the Philippines and cannot give support to their son. Although her son does not have residential status in Hong Kong, he is staying here under his father’s visa. The applicant confirmed that even if she was to return to her country, her son could continue to stay in Hong Kong. Grounds for judicial review 20.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 21.The applicant did not advance any ground for judicial review in Form 86, nor in her supporting affidavit dated 20 October 2023. 22.As aforesaid, at the oral hearing, the applicant merely said that her ex-husband threatened to hurt her, and she wanted to stay longer in Hong Kong to take care of her son. Discussion 23.First of all, the applicant’s danger from her ex-husband and her family in her home country had been assessed but rejected by the Board. If the applicant intends 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. 24.Her subjective wish to remain in Hong Kong to take care of her son is not a ground for judicial review either. 25.Thus, what the applicant said at the oral hearing before this court cannot amount to any valid ground to challenge the Board’s Decision. 26.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). 27.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review. 28.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 21 November 2022 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person. 29.As can be seen from the Board’s Decision, the Board had duly considered all the applicant’s claims. 30.The Board had laid out its findings of the applicant’s claims in paragraphs 78 to 98 of the Board’s Decision, and it is not necessary to repeat the same here. 31.In gist, the Board accepted the applicant’s claim that she held a subjective fear of harm from her claimed enemies if she returned to the Philippines. However, based on all the evidence before it, and based on the weight of the country of origin information (“COI”), including COI reporting on government and non-government services for women and the protection available to the applicant in the Philippines, the Board rejected her claim that she objectively faced a real risk of serious or fatal harm if she was returned to the Philippines. 32.While the Board accepted that the applicant’s husband might object to the use of his family name for the child who was not his biological child, the Board found no evidence that the applicant’s husband had demonstrated conduct indicating a genuine intention to seriously harm or kill the applicant for that reason, or for any other reason. The Board did not accept that the threats expressed by the applicant’s husband were anything more than an expression of outrage and disagreement over the applicant’s behavior in having a child with another man, and using his name for the child. The applicant was clear in her evidence where she repeated that her husband did not physically harm but only verbally abused her in the past. 33.As to the threat from the applicant’s close family, while the Board accepted that her family members were angry when they learned of the birth of the applicant’s son in Hong Kong with another man via a videocall, and that in the heat of the moment, they made threats to harm or kill the applicant if she returned to the country, the Board also accepted that the applicant terminated the video conversation and had not since had any conversation with her family. The Board found the evidence before it indicated that the applicant’s family members had not followed up or otherwise sought to communicate with the applicant since January 2022, and concluded that they had distanced themselves from the applicant and her Hong Kong born son. The Board found the evidence before it did not suggest that they were harbouring malicious intentions or any intention to harm or kill the applicant, or her son born in Hong Kong. 34.The Board had also considered the applicant’s claim that her family was unable to accept her because of her religion, and because she had given birth to a child with another man. While the Board found the evidence suggested that the applicant’s family disapproved of her conduct in Hong Kong, the Board did not find the evidence suggested that her family was so enraged as to be determined to target her for serious harm, or to inflict torture, CIDTP[1] or death upon her or her son if she returned to the Philippines. 35.Further, the Board had considered the applicant’s difficulties if she were to return to the Philippines with her son born in Hong Kong. While the Board did have sympathy for the applicant and also accepted that there would be challenges ahead of her in her role as a mother of a Down Syndrome child, having regard to all the evidence, the Board did not accept that those challenges, or the circumstances she faced in her country, amounted to serious or life-threatening harm to her. The Board found nothing in the evidence to suggest that the treatment and care for the child’s Down Syndrome, or for his heart condition, could not be treated adequately within the health and medical system of the Philippines. The Board did not accept that the programs and support available to Down Syndrome patients would be denied to the applicant and her child born in Hong Kong. 36.As to the applicant’s own health, the Board was satisfied that the applicant was not afflicted with a physical or mental health condition or disability which could not be adequately treated in the Philippines. The Board did not find that the applicant would be prevented by her health from holding employment through which she could earn a living to support herself and her Hong Kong born child. 37.In conclusion, the Board found that all the evidence demonstrated in the applicant’s case had not been a history of previous harm directed at the applicant. The Board did not find the evidence suggested a propensity on the part of the claimed enemies to harm, or otherwise to have a genuine intention to target the applicant for harm of any kind if she was refouled to the Philippines. Thus, the Board found the applicant did not face a real risk of harm claimed. 38.Despite its findings as summarised above, on the issue of state protection to the applicant, the Board found that the applicant did have access to adequate police protection in the remote circumstance that she should require it in relation to the conduct of her close family members, or from her husband (see paragraphs 99 to 105 of the Board’s Decision). 39.Moreover, the Board had given full reasons in paragraphs 106 to 111 of the Board’s Decision for its conclusion that it was viable and reasonable for the applicant to relocate to Davao or Cebu in the event that she continued to hold a subjective fear of harm on being returned to her home area. 40.The finding of facts, including the assessment of evidence, COI and risk of harm, was primarily within the realm of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 41.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. 42.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 applicant has failed to establish such a claim and hence leave must be refused. Conclusion 43.For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for devoid of merits. 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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