Re Compay Irene Navarro and Others

CACV 419/2024, [2025] HKCA 822

On Appeal From [2024] HKCFI 2497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 419 OF 2024

(ON APPEAL FROM HCAL NO 550 OF 2023)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.The applicants are a family of Filipinos.  The 1^st applicant (“the Mother”) is the motherof the 2^nd applicant (“the Younger Daughter”) and the 3^rd applicant (“the Son”) (both being minors and collectively referred to as “the Twins”).  This is their appeal against the order of Deputy High Court Judge KW Lung (“the Judge”) dated 7 October 2024 ([2024] HKCFI 2497) (“the Leave Decision”).

2.By the Leave Decision, the Judge, inter alia, refused their application for leave to apply for judicial review against the Board’s Decision dated 17 January 2023 (“the Board’s 2^nd Decision”), whereby the Board dismissed the Twins’ appeal against the decision of the Director of Immigration (“the Director”) dated 27 October 2020 (“the Director’s 2^nd Decision”) refusing their non-refoulement claim.[1]

3.We heard the appeal on 2 September 2025.  After the hearing, we reserved our judgment to be handed down in writing.  This is what we do now.

BACKGROUND

4.The Mother married her husband in the Philippines in 2011 and gave birth to the Elder Daughter in February 2012. Subsequently, she arrived in Hong Kong on 5 April 2017 to work as a foreign domestic helper, but her employment contract was pre-maturely terminated on 11 April 2017.  She overstayed since 26 April 2017 and surrendered to the Immigration Department on 9 May 2017.  The Elder Daughter arrived in Hong Kong as a visitor on 15 May 2017.  The Mother and the Elder Daughter raised a non-refoulement on 29 June 2017, which was later rejected by the Director on 22 September 2017 (“the Director’s 1^st Decision”) and by the Board on 21 August 2019 (“the Board’s 1^st Decision”).

5.The Mother later met an Indian man in Hong Kong in around 2017 and they got married religiously on 29 August 2019.  She gave birth to the Twins on 16 October 2019.  She made a non-refoulement claim on their behalf by way of written submissions respectively dated 28 May 2020 and 18 June 2020, on the basis that they would be harmed or killed by (a) the Mother’s creditor given her default in loan repayment, (b) the Mother’s husband owing to her extra-marital affairs, and (c) her family because she had given birth to children out of wedlock.  Details of the applicants’ claims were summarised by the Judge at [9] ‑ [16] of the Leave Decision.

6.By the Director’s 2^nd Decision, the Director dismissed the Twins’ non-refoulement claim on all applicable grounds including torture risk[2], BOR2 risk[3], BOR3 risk[4], and persecution risk[5].

7.On 9 November 2020, the Mother, on behalf of the Twins, appealed against the Director’s 2^nd Decision to the Board.  The Board heard the appeal on 1 December 2021.  During the hearing, the parties were legally represented and interpreters qualified in Tagalog, Hindi and English were present to provide language assistance.  The Mother and the Indian father attended the hearing on behalf of the Twins to give evidence.

8.By the Board’s 2^nd Decision, the Board dismissed the Twins’ appeal, and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [37] ‑ [44] of the Leave Decision:

“37. The 3^rd and 4^th applicants appealed the Director’s 2^nd Decision to the Board. On 1 December 2021, the Board conducted an oral hearing, with the 1^st applicant appearing on behalf of the 3^rd and 4^th applicants. The 3^rd and 4^th applicants were legally represented before the Board.

38. The Board began by considering the 3^rd and 4^th applicants’ claims that they were stateless [73]. The Board noted that their father is an Indian while their mother, i.e. the 1^st applicant is a Filipino [94]. As the 3^rd and 4^th applicants’ father had no intention to register their births with the Indian authorities, which is a perquisite for a citizenship in India, the Board was satisfied that the 3^rd and 4^th applicants could not attain Indian citizenship. On the other hand, the 3^rd and 4^th applicants had automatically acquired Filipino citizenship by virtue of their mother’s nationality as there was no requirement for registration. The Board therefore did not accept that the 3^rd and 4^th applicants were stateless [97]-[99], [107]-[108].

39. Regarding the claimed adultery proceedings, the Board noted from the COI that the Philippines is one of the few countries that still consider adultery as criminal offences, with a maximum period of imprisonment for six years [109]. However, adultery proceedings could only be instituted by the offended party and that both the offending party together with his/her partner must be included [113]-[114].

40. The Board then proceeded to consider the claimed discrimination that the 3^rd and 4^th applicants might face in the Philippines. In relation to their illegitimacy, the Board acknowledged that they might face some discrimination and stigma, but considered that such discrimination would not amount to persecution. They would also not be denied education, health or other services simply because of their illegitimate child status [138]-[139]. As to their religion as Muslims, COI indicated that the Philippines government had made strong efforts to address and accommodate religious issue concerning Muslims and had adopted a number of measures to protect the Islamic religion and the rights of Muslims in the Philippines [146].

41. Furthermore, COI also showed the availability of state protection [160]-[161] and overseas migrant workers would also be offered assistance on reintegration and repatriation [164]. The Board also addressed the claim on family unity, but noted that section 11 of HKBOR precluded relying on such ground to resist removal [165]-[167]. Meanwhile, internal relocation would also be viable according to COI [176].

42. The Board accepted that the 1^st applicant had separated with her husband and that she then formed a new relationship and gave birth to the 3^rd and 4^th applicants. Although they were precluded from applying for Indian citizenship, they were automatically citizens of the Philippines by virtue of the 1^st applicant’s citizenship [179]-[182].

43. The Board found the claimed fear to be far-fetched and speculative because (i) an adultery proceeding could only be commenced by the 1^st applicant’s husband, but not her mother‑in-law; (ii) the 1^st applicant’s husband had no contact with the 1^st applicant since 2017; (iii) there was no reason why the 1^st applicant could not communicate with the creditor to make arrangements for repayment in the future and there was no evidence showing that the creditor would harm the 3^rd and 4^th applicants and (iv) there was no evidence of threats of violence made by the 1^st applicant’s family [185]-[189]. In the meantime, the Board also reiterated that the harm arising due to family separation is not a basis to establish non-refoulement protection [192].

44. Based on such findings, the Board concluded that the 3^rd and 4^th applicants’ case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [12]-[31], [193]-[218]. The Board therefore dismissed the 3^rd and 4^th applicants’ appeal and confirmed the Director’s 2^nd Decision.”[6]

THE LEAVE DECISION

9.On 4 April 2023, the Mother, acting in person on behalf of the Twins, filed a Form 86 to apply for leave to apply for judicial review against the Board’s 2^nd Decision.  No ground of review was given by the applicants in support of their application.

10.As the applicants were all absent during the hearing on 17 June 2024, the Judge determined their application on paper.  By the Leave Decision, the Judge, inter alia, refused to grant leave to apply for judicial review to the Twins.  His reasons were stated at [45] ‑ [53] of the Leave Decision:

“47. The 3^rd and the 4^th applicants were represented by a duty lawyer. It is obvious that the Board had carefully considered and analyzed the evidence in relation to the 3^rd and the 4^th applicants in terms of their nationalities, their status as illegitimate children, their mother’s situation of being prosecuted for adultery, prejudice, discrimination, state protection and internal relocation, if they return to the Philippines.

48. The 1^st applicant has not been able to raise any valid reason to challenge the Board’s 2^nd Decision.

49. There is no realistic prospect of success in the applicants’ proposed judicial review of the Board’s 2^nd Decision.

CONCLUSION

50. I refuse to grant leave to the 3^rd and the 4^th applicants to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismissed their application.

DISPOSITION

51. The Order made on 17 June 2024 to adjourn these matters is set aside.

52. I refuse to grant leave to the applicants to apply for judicial review of the Boards’ Decisions. Accordingly, I dismiss their respective applications.

53. For both actions. I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the applicant’s applications a nullity.”

THIS APPEAL

11.In the Notice of Appeal filed on 7 October 2024, the applicants stated:

“THE DECISION IS UNREASONABLE. I WANT TO APPEAL” (sic)

12.The applicants all applied for legal aid on 2 December 2024, and their applications were refused by the Director of Legal Aid on 13 February 2025.  The Mother applied for legal aid on behalf of the Twins again on 8 May 2025, and their applications were refused by the Director of Legal Aid on 22 July 2025.

13.Pursuant to the Notice of Hearing dated 23 July 2025, the applicants lodged their written submissions on 4 August 2025.  In those submissions, the Mother reiterated the factual background of their non‑refoulement claim.  She also claimed that her ex-husband in the Philippines would threaten her and would harm and kill her children.  She further claimed that her family would not accept the Twins in her society as they would not accept Muslims.

14.We heard the appeal on 2 September 2025.  A Tagalog interpreter was also present to provide language assistance.  During the hearing, the Mother confirmed that she had nothing to add to the written submissions.

DISCUSSION

15.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

16.Further, the assessment of evidence, Country of Origin information (“COI”), risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

17.The court’s basic approach in relation to the assessment of a minor’s non-refoulement claim is well settled:

(1)  Non-refoulement claim by a child is a separate claim from the claims made by his/her parents.  In principle, the decision‑maker should consider each claim by reference to the personal circumstances of each claimant.

(2)  Even if the claims are based on the same set of primary facts, it would be an error of law if the decision-maker simply decides all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately.  It does not necessarily follow from the dismissal of the claim of a parent that his/her child’s claim should also be dismissed without further consideration of his/her personal circumstances.

(3)  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.

(4)  When dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of his/her non-refoulement claim, the court should pay special attention to examine, in the context of the high standard of fairness, whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions.  In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which have not, or have not properly, been advanced to the Board because of the absence of legal representation.

See Re Jasvir Singh [2021] HKCA 53, [30] ‑ [31], following Fabio Arlyn Timogan [2020] HKCA 971, [34].

18.In our view, the applicant’s allegations have no substance.  The applicants’ complaints are all general and vague without specific particulars or evidence in support.  General assertions of their fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  More importantly, the applicants failed to point out any error in the Leave Decision.  On this basis alone, the present appeal is a non-starter.

19.In any event, we have considered the Leave Decision carefully and are unable to see any arguable ground of appeal against the decision.  Both the Board and the Judge had considered the Twins’ claims separately from that of the Mother’s as required by the law.  In particular, the Twins’ were legally represented before the Board, and the Board had given extensive consideration of the Twins’ case and submissions with reference to different COI when on specific issues of adultery and divorce and whether the Twins would be subjected to the alleged harm: see [109] ‑ [119] of the Board’s 2^nd Decision.  The Board also considered whether the Twins would face a risk of harm due to their status as “illegitimate” children and whether they would face discrimination, harassment and bullying: see [120] ‑ [139] of the Board’s 2^nd Decision.  More importantly, the Board also considered in detail with reference to COI whether the Mother’s conversion to Islam and the Twins being raised as Muslims would cause the Twins to face harm owing to their religion or mixed race, and found that no real risk of proscribed harm would exist: see [140] ‑ [148] of the Board’s 2^nd Decision.  Accordingly, the Judge was clearly correct to find that there was no error in the Board’s 2^nd Decision.

20.As the Court of Appeal held in Re Rina Mulyani [2021] HKCA 1156, at [25], if the court is satisfied that the Board achieved high standard of fairness in dealing with the minor’s claim and there is no underlying matter that may support a minor-specific non-refoulement ground, it is open to the court to conclude that the minor’s intended judicial review of the Board’s decision is without merit.  We are satisfied that this is the situation in respect of the Twins’ claim in the present case.

21.All in all, the applicants have failed to substantiate any alleged error of the Deputy Judge in the Leave Decision.  We agree with the Judge that there was no error of law, procedural unfairness or irrationality in the Board’s 2^nd Decision.

22.For the above reasons, the appeal has no merit and we dismiss it.

23.For the avoidance of doubt, we shall treat the non-compliance with Order 80, rule 2 of the Rules of the High Court (Cap 4A) in these proceedings as a mere irregularity without rendering the Twins’ application a nullity.