Racraquin Magie Balgua and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2724/2019 on BabelCite. This High Court CFI judgment was delivered on 1 April 2025.
1. This is the Applicants’ amended application for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 17 December 2018, dismissing their appeal against the decision of the Director of Immigration (the “Director”) in his notice of decision dated 23 April 2018 refusing their application for non-refoulement protection (the “Notice”).
Cited by 1 case · Cites 11 cases
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HCAL 2724/2019 [2025] HKCFI 1225 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2724 of 2019
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge To:
Observations for the Applicant: Introduction 1.This is the Applicants’ amended application for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 17 December 2018, dismissing their appeal against the decision of the Director of Immigration (the “Director”) in his notice of decision dated 23 April 2018 refusing their application for non-refoulement protection (the “Notice”). 2.The 1st Applicant is the mother of the 2nd Applicant. The original leave application was filed by the 1st Applicant on 17 September 2019 on behalf of herself only. It was filed six months out of time. On 14 January 2020, the 1st Applicant applied to amend the leave application by joining her son as the 2nd Applicant. The joinder was approved and the leave application was amended pursuant to the order of Deputy High Court Judge Lung dated 18 June 2020. The issue of extension of time to file the leave application had not been considered. 3.On 25 July 2023, a legal aid certificate was issued to the 1st Applicant for the 2nd Applicant for the purpose of pursuing his leave application. However, the certificate was discharged on 15 April 2024. The Applicants are now unrepresented. 4.This case was listed for hearing before this Court on 6 December 2024. The 1st Applicant produced a re-amended leave application prepared by the Justice Centre. The Court granted them leave to further amend the leave application. In view of the various new issues raised, the hearing was adjourned to a date to be fixed. 5.At the adjourned hearing on 6 January 2025, the 1st Applicant indicated that she will not seek legal representation for herself and the 2nd Applicant. Having considered the applicable law, the re-amended leave application, the issues raised, that the Applicants had been legally represented before the Director, that no new evidence would be advanced, the 1st Applicant’s expressed intention not to seek legal representation for herself and the 2nd Applicant, the Court considered their leave applications may be justly determined despite the absence of legal representation without prejudicing the interest of the 2nd Applicant. Furthermore, as the Director of Legal Aid having granted them legal aid but subsequently discharged the legal aid certificate, it would be futile to ask the Applicants to reapply for legal aid. Hence, the Court treated the absence of legal representation a mere irregularity which would not render the proceedings void and proceeded to make the determination. See also paragraph 28 below. Extension of time to file the leave application 6.The issue of late application had not been considered by the court when granting the joinder application. The 1st Applicant was late by six months while the 2nd Applicant was late by ten months. The delay is very substantial. The explanation for the delay offered by the 1st Applicant is that she was ignorant of the time limit and procedures and has no legal assistance. This Court did not consider these are valid explanations. However, being a minor, the 2nd Applicant has no control over the conduct of the proceedings. He should not be prejudiced by the neglect of his mother. In view of the overriding interest of the minor, this Court granted both Applicants leave to file the leave application out of time. The Applicants’ case 7.The Applicants are nationals of the Republic of the Philippines, now aged 44 and 7 respectively. The 1st Applicant is a Catholic. Apart from the 2nd Applicant, the 1st Applicant has two elder sons born with her previous partner (the “ex-partner”). Her two elder sons are now living with her mother in the Philippines. 8.The 1st Applicant cohabited with her ex-partner in 1996. She did not know he is a Muslim until after she had her first son. The ex-partner used to be good to the 1st Applicant until the birth of her second son with him in 2001 when she discovered he had an affair and wanted to leave him. He did not want her to leave and proposed to marry her on condition that she and their sons be converted to Islam. The 1st Applicant refused and moved with her two sons to live with her mother. 9.Her ex-partner went to her parents’ home from time to time to assault her and vandalise her parents’ home. He warned her that she had to return his sons to him or he would beat her up. The 1st Applicant did not seek police assistance as she believed the police would not help her. In 2003, she could not stand him any longer. She left her sons with her parents and went to work in Manila. She learned that her ex-partner had found out she was in Manila. Though she had never met him in Manila, she felt unsafe. Thus, she went to work in Hong Kong in 2007 to avoid him. 10.The 1st Applicant returned to the Philippines for holiday in 2010 and stayed with her parents. One day, her ex-partner came. He blamed her for refusing to marry him and accused her of having an affair in Hong Kong. He vandalised her parents’ home, assaulted her and threatened to kill her. Then, the 1st Applicant returned to resume work in Hong Kong. While in Hong Kong, her mother told her that her ex-partner had come to her home from time to time to ask about her. 11.The 1st Applicant returned to her parents’ home for vacation in 2015. One day, her ex-partner came. He accused her of having an affair in Hong Kong and threatened to kill her. He came four times to assault her. Then the 1st Applicant moved to her friend’s home in Alaminos City to avoid him before returning to work in Hong Kong. While in Hong Kong, she developed a relationship with another Filipino and gave birth to the 2nd Applicant on 29 August 2017. 12.In gist, the 1st Applicant claims she will be harmed or killed by her ex-partner for refusing to marry him, refusing to return their sons to him, having a relationship with another man and giving birth to a child with her new partner. She claims on behalf of the 2nd Applicant that he will be harmed or killed by her ex-partner for being born by her with her new partner. The Applicants claim that state protection is not available and they could not relocate to other areas in the Philippines as the 1st Applicant does not have family or friends elsewhere in the Philippines. The Board’s finding in the Decision 13.The 1st Applicant testified on behalf of herself and the 2nd Applicant in the appeal. The Board considered her evidence consistent. It accepted her evidence and assessed her claim on the basis of the factual case as she asserted. 14.The Board found on the basis of authoritative and credible country of origin information (“COI”) that there is a functioning system of law and order in the Philippines; that people who broke the law were generally subject to prosecution; that there had been significant changes in recent years in the attitudes and response of the police and the authorities towards domestic violence; and that there are government and non-governmental organisations which provide help to victims of domestic violence. It found a reasonable system of state protection would be available to the Applicants in the event they sought assistance and protection from the harm they feared from the ex-partner. 15.The Board considered the risk of harm to be localised to the 1st Applicant’s home area. Given the geographical and population size of the Philippines, it found it difficult for her ex-partner to locate her if she moved to live in places other than her home area on her return to the Philippines, such as Manila or Cebu. It noted that there are government and non-governmental organisations in the Philippines which provide help to victims of domestic violence and that it is possible to seek assistance and protection from the authorities. As the 1st Applicant is a healthy and a resourceful woman with good working experience, the Board considered the Applicants could relocate to other areas in the Philippines to avoid the risk of harm from the ex-partner. 16.The Board accepted that the 1st Applicant had been subjected to domestic violence and threatened with death and harm by her ex-partner which would be likely to cause them severe pain and suffering. As the source of harm would come from the ex-partner who is at all relevant times, a private individual and not a public official and was not, and would not be, acting in an official capacity, the harm would not be inflicted by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity. It therefore falls outside the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance for the purpose of establishing Torture Risk ground. Furthermore, the Board found adequate state protection is available to the Applicant in the Philippines (see paragraph 14) and they can also avoid the harm by internal relocation (see paragraph 15). It is also not their case that there exists in the Philippines a pattern of gross, flagrant or mass violations of human rights as to indicate that there are substantial grounds to believe that there is a real risk that they would be in danger of being subjected to torture upon their return to the Philippines. The Board therefore found the Applicants had failed to prove their entitlement to protection under the Torture Risk ground. 17.As involvement or acquiescence by a public official is not required for proving a claim under BOR 3 Risk ground, the Board accepted that the feared harm would falls within the meaning of ‘degrading treatment’ for the purpose of proving BOR 3 Risk. The Board noted that the 1st Applicant had no contact with her ex-partner since her last visit to the Philippines in 2010 and has repeatedly told him over the past 18 years that she has no wish or desire to ever be re-united with him and that she is now in an ongoing permanent relationship with another with whom she has had a baby. The Board found it difficult to understand how her ex-partner would in the circumstances continue to think that he and she had a future together and that he had not moved on and accepted that their relationship was permanently ended. However, accepting her ex-partner is a jealous person who had previously subjected her to domestic violence, the Board was prepared to afford her the benefit of the doubt and accepted that if she returned to her home area with a new baby and a new partner, it is likely that her ex-partner would come to know of her circumstances. Hence, the Board gave the Applicants the benefit of the doubt and accepted that there is a small though nonetheless real risk that they would face a real risk of being subjected to degrading treatment by the ex-partner if they returned to the 1st Applicant’s home area in the Philippines. However, for reasons as given above, the Board found that adequate state protection and internal relocation are available to prevent or avoid the harm or risk of harm. It therefore found the Applicants are not entitled to protection under BOR 3 Risk ground. 18.The Board found the risk arose for private and personal reasons and not on account of any of the reasons protected under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol. In view of this and the earlier finding that adequate state protection and internal relocation are available, the Board found the Applicants are not entitled to protection under Persecution Risk ground. 19.As for BOR 2 Risk ground, there is no evidence that the Applicants’ lives will be at risk of arbitrary deprivation on their return to the Philippines. Nor does the evidence and information before the Board indicate or suggest that the humanitarian conditions in the Philippines are so dire as to render refoulement a violation of the Applicants’ right to life. Hence, the Board also rejected their claim under this ground. 20.For these reasons, the Board dismissed the Applicants’ appeal against the Notice. Legal principles applicable to judicial review 21.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[1]. Grounds for judicial review 22.The Applicants advanced the following three grounds of review in their further amended Form 86:
Ground (1) 23.This is a child-specific ground, which is only applicable to that part of the Decision relating to the 2nd Applicant. The Applicants submit that the Board erred in law by failing to conduct a child-specific assessment of the risk of harm to the 2nd Applicant separate from that of the 1st Applicant. In particular, they argue, quoting Fabio Arlyn Timogan[2] that ill-treatment which may not rise to the level of persecution in the case of an adult may do so in the case of a child; that the Board failed to take into account the 2nd Applicant’s personal circumstances. The Applicants’ pleaded case in their NCF, ROI and the testimony before the Board is that they were afraid of harm from the ex-partner and nothing else. The above arguments now advanced before the Court had not been pleaded in the NCF or raised before the Board. 24.The personal circumstances relied on by the 2nd Applicant are that he was born and brought up in Hong Kong, has never lived in or visited the Philippines, has no existing family, no social and cultural ties with the Philippines; and has no understanding of the cultural norms there. They submit that the Board had failed to take these personal circumstances into account and consider how his removal from Hong Kong, the only home he has known of, would affect him as a young child; the discrimination he may face as an illegitimate child born out of wedlock; and the individual risks he may face from the ex-partner. In finding that the Applicants would face a small but nonetheless real risk of being subjected to degrading treatment by the ex-partner, the Court is satisfied that the Board had adequately considered the third of these issues, though not the other two un-pleaded issues. Those two issue or their relevance may not readily apparent. However, in Jassal Tajinder Kumar[3], the Court of Appeal said, quoting Fabio and Jasvir Singh[4]:
25.The present case falls well within the circumstances described in the above dicta. The Board was aware of the fact that the 2nd Applicant was born in Hong Kong, had never been to the Philippines, was born out of wedlock, and as an illegitimate child he might face discrimination of some sort. In the circumstances, the other two issues raised by the Applicants may provide potential minor-specific bases for a non-refoulement claim, even though they had not been advanced before the Board. Having regard to the high standard of fairness and the duty of joint endeavour, the Court considers it at least reasonably arguable that Board might have erred in law in failing to conduct a proper child-specific assessment of the risk of harm which the 2nd Applicant might face on his refoulement to the Philippines. As the Board's finding under Torture Risk, BOR 2 Risk and Persecution Risk grounds are not challenged, leave is only given to the 2nd Applicant to apply for judicial review under BOR 3 Risk ground. 26.Next, the Applicants quoted the following passage from Fabio[5]:
They submit that the high standard of fairness in non-refoulement proceedings would necessitate serious consideration be given to having a lawyer assigned to represent the 2nd Applicant, whether before the Board or the Court and that the lack of legal representation for the 2nd Applicant before the Board amounted to a breach of the high standard of fairness demanded in this type of case. 27.This Court accepts and respects the Court of Appeal’s direction that applications for judicial review by a child claimant should proceed in accordance with the regime under Order 80 rule 2 of the Rules of the High Court with the appointment of a next friend and acting by a solicitor and that the Board or the Court should not proceed despite the failure to observe the rule by treating the failure as a mere irregularity. However, in Re Zafar Muazam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10], the Court of Appeal also held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar[11], nor the judgment of FB v. Director of Immigration[12] prescribes that a claimant of BOR 2 or BOR 3 or Persecution Risks has an absolute right to free legal representation at all stages of the proceedings. Hence, this Court understands that the direction is not meant to be a strict jacket and may be relaxed provided that the interest of the minor will not be prejudiced through lack of legal representation. As leave is given to the 2nd Applicant to apply for judicial review in respect of the Board’s finding under BOR 3 Risk ground, it would serve no purpose to explore whether the Board had also been in breach of the high standard of fairness for this reason. 28.As for the future conduct of these proceedings, it should be noted that the 1st Applicant had expressed her intention not to arrange legal representation for the 2nd Applicant and that both of them had been granted legal aid to prosecute this leave application but the legal aid certificate was subsequently discharged. Legal aid certificates may be discharged under regulation 8 of the Legal Aid Regulations (Cap 91A). The usual reasons for discharge are lack of merits in the claimant’s case or that the claimant was later found not qualified for assistance under the means test. The other reasons for discharge are the claimant’s unreasonable conduct in the litigation, his failure to cooperate with his assigned counsel, or his refusal to make contribution. These reasons involve some abuse of the legal aid scheme. In the Court’s opinion, the high standard of fairness could not have required the authorities or the Board to use public funds to finance a legal action for an unworthy cause, such as one which has no merits; or to finance a legal action which is not beyond the claimant’s financial means; or to continue to finance the legal action of a claimant who having been given the benefit of the publicly funded legal aid scheme abused it in the conduct of the legal action. Under such circumstances, the claimant could only have himself to blame and it lies ill in his mouth to accuse the Board or the court of breach of the high standard of fairness by failing to provide him with legal representation in the pursuit of his claim. The 2nd Applicant’s interest has now been identified. His interest will be further protected by the Court’s high standard of fairness. For these reasons, lack of legal representation in the circumstances would not amount to a breach of the high standard of fairness. That said, the Court suggests that the 1st Applicant should apply on behalf of the 2nd Applicant for legal representation by the Official Solicitor or re-apply for legal aid from the Director of Legal Aid for the future conduct of his claim. Ground (2) – The Board erred in assessing whether there is a real risk of mistreatment that would constitute CIDTP with regard to the availability of state protection and internal relocation 29.This ground is only directed at the Board’s finding under the BOR 3 Risk ground that the Applicants would face a real risk of being subjected to mistreatment by the ex-partner if they returned to their home area in the Philippines, but such risk may be mitigated by the availability of state protection and internal relocation. The 1st Applicant argues that this conclusion only focused on the risk faced by her as a vulnerable mother in relation to her past experience of domestic violence, without taking into consideration the specific circumstances of the 2nd Applicant as a minor, particularly one born out of wedlock. She referred to COI about discrimination facing illegitimate children in their right to inheritance, treatment by certain schools and teachers, and availability of child care etc which also has an impact on suitability of the area of relocation. As the Board had not made a child-specific assessment of the risk of harm in respect of the 1st Applicant, it had also not considered these issues in its finding of availability of state protection and internal relocation in relation to the 2nd Applicant. As this argument is directed at the Board’s decision as regards the 2nd Applicant only, it has no bearing on or application to the 1st Applicant. 30.As leave to apply is granted to the 1st Applicant under Ground (1), all these issues will have to be revisited in the leave application. As at this stage the discriminations raised are all in general or broad terms, some are even hypothetical. It will serve no purpose to discuss about these COI here. These issues, if crystalized or particularised will be argued in the review and in the re-hearing before the Board, if leave to apply is granted under Ground (1). There is no need to specifically grant leave to the 2nd Applicant under this ground. Ground (3) – Breach of duty of joint endeavour in failing to enquire into country conditions 31.This ground is applicable to both Applicants. It is directed at the Board’s finding of availability of state protection and feasibility of internal relocation. It overlaps with Ground (2) as regards the 2nd Applicant. The Board held at paragraph 68 of its Decision:
32.The 1st Applicant disagrees with the Board’s finding. She submits, quoting Secretary for Security v Salthevel Prabakar[13], that where a claimant faces difficulty of proof, the high standards of fairness called for may require the Director to conduct investigations and obtain relevant information and materials on general country conditions depending on the facts and issues raised in a case. She referred to a number of COI to dispute the Board’s finding. 33.First, she referred to Analysis of Children in the Philippines written by Coram International at Coram Children’s Legal Centre (the “Report”) which was commissioned by UNICEF and published in October 2018. The Report cited the National Baseline Study on Violence against Children: Philippines which reported that Filipino children suffer a high level of violence during their childhood: two in three children were reported as having experienced some form of physical violence in various settings; three in five children were reported to have experienced some form of psychological violence in any setting; and one in four children reportedly suffered from some form of sexual violence in any setting. The Report also highlighted problems in implementation of national and regional government policies on child protection at local government level. 34.Second, she referred to UNICEF East Asia and the Pacific Regional Office, UNFPA Asia and Pacific Regional Office, and UN Women Asia and Pacific Regional Office, Ending Violence against Women and Children in the Philippines: Opportunities and Challenges for Collaborative and Integrative Approaches, Bangkok: UNICEF, 2020. These COI reported that there are multiple barriers to accessing justice, burden on victims to collect evidence, long and drawn out justice procedures, lack of sensitive or protective judicial progresses as well as economic and social stigma issues. 35.Third, she referred to Country Reports on Human Rights Practices for 2021 published by the Department of State of the United States which reported that in smaller localities perpetrators of abuse sometimes used their personal relationships with local authorities to avoid prosecution. 36.Fourth, she referred to a master degree thesis titled “Violence Against Women in the Philippines” by Tria Marie R Garcia, which reported a case of a complainant begging the police to release her perpetrator and accused the police of illegal detention if they refused. The thesis also mentioned about abuse of power by the police. 37.Fifth, the same thesis also mentioned that the service centres are not conveniently located. 38.As was mentioned in paragraph 53 of the Decision, the Board discussed the COI with the 1st Applicant at the hearing. It is not clear what those COI were. It most probably included the Country Reports on Human Rights Practices for 2017 published by the Department of State of the United States listed in the Appendix annexed to the Director’s Notice. The COI are from recognized, authoritative and credible sources. The Board recognised that the conditions in the Philippines are not perfect. However, it identified the essential requirements of adequate state protection, namely a system of criminal law, a reasonably effective and impartial police force and a justice system. It was also satisfied that the systems were working well in the Philippines in that people who broke the law were generally subject to prosecution. No host country can guarantee the absolute safety of its citizen or a claimant refouled to his home country. The home state’s duty is to ensure that the claimant will be reasonably safe. A system of criminal law, an effective and impartial police force and a reliable judicial system are basically what are required to reach that end. 39.The Applicants have not produced any COI which contradicts these findings of the Board. At the highest, the COI they produced indicated some imperfections in state protection, such as inconvenient access to service centres, difficulties in accessing help in some small localities, and isolated incidents where a claimant begs the police to release her perpetrator (which also reflects an absence of a will on the part of the claimant to pursue her claim rather than impunity on the part of the law enforcement agencies). These are just examples of individual imperfections, not a whole scale break down of the system of law, the police, the justice system or service and assistance provided to women. The world is not perfect, nor is the protection in Hong Kong. Some imperfections have to be accepted. The Board was aware of imperfections. It had taken them into account when making its finding of availability of state protection and feasibility of internal relocation. These are finding of fact by the Board which the Court in a judicial review will not intervene, save for errors of law, procedural unfairness or irrationality. Save for its failure to take into account the personal circumstances of the 2nd Applicant in its assessment, the Court could find no reason to intervene with that finding. 40.The inadequacies of the Board’s finding on state protection and internal relocation as regards the 2nd Applicant is accepted, but not that as regards the 1st Applicant. For the same reasons as mentioned under Ground (2), there is no need to specifically grant leave to the 2nd Applicant to apply in respect of the Board’s finding on state protection and internal relocation. Conclusion 41.For the above reasons, leave is given to the 2nd Applicant to apply for judicial review in respect of the Board’s Decision under Torture Risk ground, but leave to apply by the 1st Applicant is refused. Dated the 1st day of April 2025
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 [1] [2018] HKCA 524 at [14(1)] [2] [2020] HKCA 971 at [47-54], [3] CACV 183/2020 at [29] [4] At [31] [5] [2020] HKCA 971 at paras 49 and 57 [6] CACV 2/2018, (unreported) 23 March 2018 [11] (2004) 7 HKCFAR 187 [12] HCAL 51 of 2007 [13] (2004) 7 HKCFAR 187 at [44] – [45], [51] – [55] | ||||||||||||||||||||||||||||||||||||||||
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