Gardiola Jeane Lagac and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 896/2025 on BabelCite. This High Court CFI judgment was delivered on 17 June 2025.
1. This is the Applicants’ amended application by Form 86 filed on 14 April 2025 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 2 August 2024 (the “Decision”) dismissing their appeals against the decision of the Director of Immigration (the “Director”) in his notice of decision dated 29 August 2018 in respect of both Applicants dated 21 June 2023, refusing their a
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HCAL 896/2025 [2025] HKCFI 2539 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 896 of 2025
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 by Form 86 filed on 14 April 2025 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 2 August 2024 (the “Decision”) dismissing their appeals against the decision of the Director of Immigration (the “Director”) in his notice of decision dated 29 August 2018 in respect of both Applicants dated 21 June 2023, refusing their application for non-refoulement protection (the “Notices”). 2.The leave application was filed 8 months and 8 days after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was lodged three months and 5 months and 8 days out of time. Extension of time to apply is required. The delay is substantial. Despite clear warning in the Form 86 that an applicant is required to state their grounds for application and reasons for delay, if any, the Applicants provided neither. 3.In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[2], per Litton PJ. The delay in this case is so substantial that leave may be refused on this ground alone without considering the merits of the substantive application, unless the Applicant has a reasonable and credible explanation for the delay. As a minor’s interest is involved in the application, the Court decided to assess the merits of the application before deciding whether to refuse extension of time to file the leave application. The background 4.The 1st Applicant is a Philippine national, now aged 50, and the mother of the 2nd Applicant. She was married and had two adult sons in the Philippines. She came to work in Hong Kong as a foreign domestic helper in November 2005. She overstayed since 12 November 2007 after her employment was terminated. 5.Since 2008, she has been in a de facto relationship with an Indian national (“her boyfriend”) in Hong Kong. She became estranged from her husband. In June 2015, she lodged a non-refoulement claim with the Director claiming that she could not return to the Philippines because her husband knew about her relationship with her boyfriend and threatened to kill her if she returned to the Philippines. Her application was deemed withdrawn for want of filing of her non-refoulement claim form (“NCF”). She later applied to re-open her application, but her application to re-open was refused by the Board. She then applied for leave to apply for judicial review of that decision under HCAL 952/2017, but her application was refused by Campbell-Moffat J on 4 December 2018 for having been made out of time by 105 days. 6.In the meantime, she gave birth to the 2nd Applicant on 22 September 2016. On 17 February 2023, she made a request to make a subsequent claim. Her request was allowed and she filed a non-refoulement claim for herself and the 2nd Applicant. In due course, their claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6]. Their claim was rejected by the Director’s Notice. Their appeal against the Notice was dismissed by the Board’s Decision. They now apply for leave to apply for judicial review of that Decision. Legal representation for the 2nd Applicant 7.As the 2nd Applicant is a minor, the Court explained to the 1st Applicant representing him the requirements under Order 80 rule 2 of the Rules of the High Court that she must seek legal representation for the 2nd Applicant so that his specific interest may be fairly put before the court. She had applied for legal aid from the Legal Aid Department on behalf of herself and the 2nd Applicant, but their applications were rejected. The Court explored the possibility of her seeking private legal representation. The 1st Applicant said she would seek funding from her friends but would require five years to raised the money for private legal representation. Actually, she said she would like to stay in Hong Kong for five years so that the 2nd Applicant could complete his primary education here. She had no means and no intention to seek private legal representation. She said the 2nd Applicant’s claim is based on her claim, she understood his child specific circumstances, she felt she could adequately present her case as well as the 2nd Applicant’s by herself. Having considered the applicable law, the Form 86, the issues raised, that the Applicants had been legally represented before the Director, that no new evidence would be advanced, and the 1st Applicant’s expressed intention not to seek private legal representation, the Court was of the opinion that despite the absence of legal representation, their leave application may be justly determined without prejudicing the interest of the 2nd Applicant. The Court therefore considered the absence of legal representation a mere irregularity, which would not render the proceedings void. Hence, the Court proceeded to hear their leave application. The Applicants’ case 8.The following account of the Applicants’ subsequent claim is mainly based on the information in the non-refoulement claim forms (the “NCF”) prepared by the 1st Applicant for herself and for the 2nd Applicant with legal assistance and the record of her screening interviews in the presence of her lawyer. In gist, their claim is that they are in fear of revenge at the hands of the 1st Applicant’s late husband’s family because her late husband was said to have died of a heart attack upon hearing that the 1st Applicant had given birth to the 2nd Applicant with another man. In addition, they are also in fear harm of stigmatism and discrimination because the 2nd Applicant is a child of mixed race and born out of wedlock and the 1st Applicant is his mother. 9.Since starting her relationship with her boyfriend in 2008, the 1st Applicant tried to keep it secret from her husband. In around July 2010, her husband called her and told her that he knew about their relationship and threatened to kill her when she returned to the Philippines. Her husband called her many other times, but she did not answer. In 2011, she called her husband and suggested that they separate, but he refused and renewed his threat to beat her up and even kill her. That was her last communication with her husband. 10.One day in June/July 2019, her husband’s elder sister called her via Facebook messenger from a hospital in the Philippines and told her that her husband had died. She said he learned through their mutual friend who had recently visited Hong Kong that she had given birth to the 2nd Applicant. He asked that mutual friend to seek confirmation from other common friends in Hong Kong. That mutual friend confirmed after making some inquiries and reported back to her husband. That confirmation came as a shock and her late husband suffered a heart attack and was rushed to a nearby hospital where he died a few hours afterwards. Her husband’s family was devastated by his death as he was the only son of the family. His elder sister was very angry throughout the conversation and threatened that her whole family would take the Applicants’ lives if they returned to the Philippines. 11.The 1st Applicant believes that the 2nd Applicant would not be accepted by her own family and that of her late husband’s. Being a widow and single mother, she had no shelter, no help from her friends and no family support. She would suffer stigmatism and discrimination because of her extra-marital and mixed race relationship and as the mother of a mixed race child born out of wedlock. She would be seen as a disgrace. She fears being considered as an outcast and fears being exposed to unfair treatment and/or discrimination in society and fears being vulnerable to sexual and labour exploitation. 12.She believes the 2nd Applicant, being a mixed race child born out of wedlock and a Sikh would face stigmatism, unfair treatment and discrimination in a population that is predominantly Catholic and Christian and be shunned by the general community. He would be prevented from practising his religion in the Philippines and discriminated by the locals for he could only speak English. The Board’s finding 13.The 1st Applicant testified before the Board. The Board had serious reservations about the genuineness of a number of core claims advanced by her. Some major reservations are as follows. 14.First, the 1st Applicant was in a dysfunctional marital relationship with her husband. Since she went to work in Hong Kong in 2005, her husband moved out of the matrimonial home to live with his own family. He rarely returned to the matrimonial home to visit his children. He did not returned to the matrimonial home when the 1st Applicant returned in 2007. He did not even have her contact number in Hong Kong. His next contact with the 1st Applicant was the telephone conversation in 2010 after he had obtained her telephone number from her aunt and confronted her about her extra-marital relationship. The next and last contact was when the 1st Applicant telephoned him and propose to separate. Some five years lapsed without any meaningful contact between them. The Board found it difficult to understand and accept that her husband had any feeling for the 1st Applicant at all or even if he had, that he would not have realised that their relationship was effectively and already over. It therefore doubted whether there was any information conveyed to her husband in 2010 about her extra-marital relationship, and consequently whether he had made any threats to harm or kill the 1st Applicant. 15.Second, the Board found the 1st Applicant’s account of how the news of the birth of the 2nd Applicant was conveyed to her husband problematic. She told the Board that this mutual friend who conveyed the news to him was well-known to her and her husband, but she was unable to recall his name because she and that mutual friend seldom saw each other and that that mutual friend just came to know about her from other friends in Hong Kong. When pressed as to how they saw each other in Hong Kong, the 1st Applicant asserted that the mutual friend just came to know about her from other friends in Hong Kong, that the person who came here and who was a friend of her husband spoke to his friends who knew her, and then he told her husband what he learned from his friend. The Board found her answers convoluted and inconsistent. 16.Third, if the 1st Applicant’s husband had become aware of her extra-marital relationship some nine years earlier as she alleged, the Board considered the possibility that she might subsequently also have become pregnant and had a child should hardly have come as a surprise to her husband, let alone a shock. Even if her husband was not aware of her prior extra-marital relationship, it still made no sense that he would have been so shocked by the news that he immediately had a heart attack if, as claimed, he first had time to ask the source of the news from that mutual friend and to seek and wait for confirmation. 17.Fourth, according to the 1st Applicant, her husband was an alcoholic smoker with hypertension. It would be difficult to accept why anyone would believe it was not this which caused his heart attack but the news that his estranged wife whom he had not seen for 14 years had given birth to a child with another man. 18.Fifth, the Board found the credibility of the 1st Applicant’s proposition that the news would have been so shocking to her husband as to induce a heart attack is undercut by the COI which indicated that illegitimate children are so commonplace in the Philippines that for many years now the majority of all children born there have been born out of wedlock. 19.Apart from the cause of the husband’s death and the threat from his family, the Board also considered the issue of stigmatism and discrimination arising from the fact that the 2nd Applicant was a child of mixed parentage and religion and born out of wedlock and that the 1st Applicant was a party to an extra-marital relationship and gave birth to such a child. Having considered the COI, the Board was satisfied that almost 60% of the children born in the Philippines are illegitimate and that the figure is ever growing. It did not accept that the 2nd Applicant would face any real risk of being discriminated against for this reason, let alone facing serious or significant harm, if returned to the Philippines. It seems to be the 1st Applicant’s concern that the 2nd Applicant may be prohibited from practising his Sikh religion. However, the Board noted from the COI that the Philippines is an ethnically and religiously diverse country, with minority groups having representation in parliament and education being free and compulsory for all to the age of 18 and that there are numerous Sikh temples in the Philippines. It did not accept the 2nd Applicant would face any real risk of serious or significant harm for these reasons, if refouled. 20.The Board considered the problems in the 1st Applicant’s case viewed collectively are serious enough as to impugn her credibility. It concluded that her claims with respect to the threats from her late husband’s family are essentially not credible. While accepting that her late husband died of a heart attack, the Board did not accept that it resulted from the shock of learning that the 1st Applicant had given birth to a child with another some three years earlier, or that her husband’s relatives blamed her for his death. The Board did not accept her husband’s sister had threatened that her relatives would kill the Applicants in revenge. It was satisfied that both Applicants would not be at risk of serious or significant harm because the 2nd Applicant is a person of mixed race and mixed religion born out of wedlock and the 1st Applicant is his mother. Applying the law applicable to non-refoulement protection, the Board found the Applicants had failed to establish the factual basis to support their claim for protection under the USM. Hence, it dismissed their appeals. 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[7]. Grounds for judicial review 22.The Applicants did not advance any grounds of review in their leave application. In the 1st Applicant’s supporting affirmation, she said that she was not satisfied with the decision of the Director and the Board. She emphasised that she and the 2nd Applicant will be at risk if returned to the Philippines. 23.At the hearing, after the legal principles in the preceding section had been explained to her, the 1st Applicant emphasised that their lives will be at risk in the Philippines, that the family and in particular the sister of her late husband would harm them. She said she only wanted to stay in Hong Kong for five more years so that the 2nd Applicant could complete his secondary school education. In effect, she is seeking to challenge the finding of fact by the Board that they would not be at risk of any of the proscribed harm or risk of harm, if returned to the Philippines and seeking to stay in Hong Kong for purpose outside the protection of the USM. None of these could constitute an arguable ground of judicial review. 24.In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. Overall scrutiny 25.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the claims of both Applicants are rested on the same factual basis, ie the 1st Applicant’s extra-marital relationship and birth of the 2nd Applicant out of wedlock and as a child of mixed race practising a minority religion; and facing the same harm and risk of harm from the family members of the 1st Applicant’s late husband, and stigmatisation and discrimination from the community. The 2nd Applicant’s claim is hinged on the 1st Applicant’s. His claim stands or falls together with the 1st Applicant’s. The Court is satisfied that the Board had given special attention to the personal circumstances of the 2nd Applicant when assessing his risk of harm. 26.The Court is also satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection 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 analysed the evidence carefully, tested it against common sense, inherent probability and against authoritative and credible COI. It did not accepted the 1st Applicant’s claim that her husband died of heart attack induced by shock on learning that his estranged wife whom he had not seen for 14 years and whom he knew had a de facto relationship with another had given birth to a child with that other man three years ago. It also found on the basis of authoritative and credible COI that the Applicants would not be at risk of stigmatism and discrimination by reason of the 2nd Applicant being a mixed race child born out of wedlock and the 1st Applicant being his mother. These are finding of fact solely for the Board. The Board gave full reasons for its finding. It was on that basis that the Board found the Applicants had failed to establish the factual basis to support their claim for non-refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. Conclusion 27.As the Applicants’ intended judicial review has no prospect of success, it would be futile to grant them extension of time to file the leave application. Accordingly, extension of time to file the leave application and the application for leave to apply for judicial review are refused. Dated the 17th day of June 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] CACV 63/2015 (unreported) 3 November 2015 [2] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ [3] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [4] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) [5] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol [6] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [7] [2018] HKCA 524 at [14(1)] | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCAL 896/2025