Re Bantigue Susan Banes and Another

CACV 234/2024, [2025] HKCA 853

On appeal from [2024] HKCFI 1460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 234 OF 2024

(ON APPEAL FROM HCAL 588 OF 2019)

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J U D G M E N T

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

1.This is an appeal against the decision of Deputy High Court Judge To (“the Judge”) given on 28 May 2024 refusing leave to the applicants to apply for judicial review (“the Judge’s Decision”).

2.The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 22 February 2019 (“the Board’s Decision”) dismissing the applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 28 June 2018 (“the Director’s Decision”) rejecting the applicants’ non-refoulement claim.[1]

Immigration history and the lodgement of non-refoulment claims

3.The 1^st applicant, a national of the Philippines, last arrived in Hong Kong on 23 October 2016 for employment as a foreign domestic helper.  However, she did not depart from Hong Kong upon the premature termination of her employment, and had overstayed since 15 July 2017. 

4.Thereafter, the 1^st applicant gave birth to the 2^nd applicant in Hong Kong (out of wedlock) on 24 July 2017; the father of the latter being a man of African origins whom the 1^st applicant met while working in Hong Kong (“A2’s Father”).  

5.On 28 July 2017, the 1^st applicant surrendered to the Immigration Department.  

6.By written representations dated 2 August, 23 October and 13 December 2017, the 1^st applicant lodged her non-refoulement claim as well as the 2^nd applicant’s claim on his behalf. 

7.The applicants were legally represented for the purpose of preparing and submitting their non-refoulement claim forms (dated 5 June 2018; “NCFs”) as well as their attendance at the screening interview with the Director on 22 June 2018 (Judge’s Decision, [6]).

Background to and evidence of the applicants’ claims and fears

8.The 1^st applicant was born in Roxas City in the Philippines.  In 2009, the 1^st applicant married her husband (“Husband”), who resides in the Philippines and with whom she had 3 children.  Husband was a sailor and/or casual worker and had no stable source of income.

9.The 1^st applicant was not politically affiliated to any such bodies nor was she connected to any governmental organisations or person(s).

10.According to the applicants’ NCFs, the evidence of the 1^st applicant (which is, insofar as relevant, applicable to the 2^nd applicant’s case) is (as summarised by the Board at [7] of the Board’s Decision) as follows:

(1)  The 1^st applicant and Husband argued often.  According to the 1^st applicant, incidents of violence or assault occurred not infrequently in the household (“General Incidents of Assault”).  She reported that Husband would (i) grab her hair; (ii) sit on her chest; (iii) slap her face; and (iv) (on one occasion) attempt to cut her with a sword (as a result of which, fortunately, no injuries were sustained). Notably, the 1^st applicant did not report any of these incidents to the local police.

(2)  On 13 April 2014, the 1^st applicant’s house was searched by the police in the absence of Husband by reason of Husband’s apparent affiliation with a local drug trafficking ring.  For allowing the police to search the house without a search warrant in his absence, Husband allegedly slapped the 1^st applicant 3 times (“the 2014 Slapping Incident”).

(3)  On 11 June 2014, the 1^st applicant was approached by the police, who requested that she inform on Husband regarding his involvement in drug trafficking activities.  The 1^st applicant confronted Husband on this, which resulted in alleged assaults by Husband by a wooden pole on the right side of her body (“the 2014 Wooden Pole Incident”).  The applicant was as a result allegedly hospitalised for 3 days.

(4)  In September 2014, the 1^st applicant provided information to the police regarding the possible involvement of Husband’s ‘boss’, his 2 cousins and his aunt in Husband’s illegal activities.  As a result of a police raid at the cousins’ and the aunt’s home, drugs were found and seized.  Husband’s aunt and cousins were arrested in around September to October 2014 (“the 2014 Arrests”), with the aunt eventually sentenced to life imprisonment (Board’s Decision, [7(e)]; Judge’s Decision, [20]).

(5)  In February 2015, Husband requested that the 1^st applicant deliver a ‘box’ for him to a certain address.  The 1^st applicant instead passed the ‘box’ to the police (“the Delivery Incident”).  Notwithstanding her failure to carry out Husband’s instructions, “nothing eventful happened” (Board’s Decision, [7(f)]).  The 1^st applicant believed that Husband had discovered her disloyalty in this regard, and that as a result “Husband and his gang and relatives would retaliate against her” (Board’s Decision, [7(j)]).

(6)  The 1^st applicant, in the circumstances, decided to work overseas.  In May 2015, Husband discovered her intentions, and beat her with fists and kicks (“the 2015 Assaults”).

(7)  Notwithstanding that Husband had been violent to the 1^st applicant by reason of her intentions to work overseas, the 1^st applicant returned home with Husband and stayed with him for around 2 months (until July 2015) before leaving for Hong Kong (Board’s Decision, [7(h)]).  The 1^st applicant’s last personal contact with Husband was sometime in 2016 (Board’s Decision, [35(a)]).

(8)  In October 2016, the 1^st applicant returned to the Philippines from Hong Kong to visit her father, during which time Husband did not reach out to her (Board’s Decision, [7(i)]).

(9)  The 1^st applicant began her affair with A2’s Father in around 2017, and she believes that Husband had learned of this and “was furious” (Board’s Decision, [7(j)]).

11.The details of the 1^st applicant’s claim and evidence, which the Judge treated as covering those of the 2^nd applicant, have also been summarised at [3] to [6] of the Judge’s Decision[2].

12.In summary, the 1^st applicant’s claim was that stemming from the Delivery Incident to Husband’s discovery of her disloyalty (towards his illegal activities and their marriage), as well as Husband’s record of violence and abusive temperament, she fears retaliation from Husband and/or his criminal affiliates. 

13.As regards the 2^nd applicant, as noted by the Judge, no risk of harm specific to the 2^nd applicant’s refoulement to the Philippines appeared to have been advanced by the 1^st applicant on his behalf (see Judge’s Decision at [46]; see also Director’s Decision at [2]-[3]).  At most, it may be said that the 2^nd applicant’s position that he would be harmed and/or killed by Husband (and/or his associates) upon refoulement (see Board’s Decision, [6]), and the evidence being put forward in support of the 2^nd applicant’s claim is identical to that of the 1^st applicant.

The Director’s and the Board’s Decisions

14.By a Notice of Decision dated 28 June 2018 (i.e. the Director’s Decision), the Director decided against the applicants’ claims, which covered the BOR 2 risk^[3], the BOR 3 risk^[4], the persecution risk^[5] and the torture risk^[6].

15.The applicants appealed to the Board.  After a hearing on 4 January 2019 (at which the applicants were unrepresented), and having heard evidence from the 1^st applicant (on behalf of herself and the 2^nd applicant), the Board dismissed the appeal on 22 February 2019 (i.e. the Board’s Decision).  The Board’s Decision covered all four grounds for non-refoulement protection.

16.At the hearing before the Board, the 1^st applicant confirmed that the applicants’ source of fear, which form the bases of their claims, was confined to a risk of harm and/or killed by Husband, but there existed no risk of harm from the government or the police of the Philippines (Board’s Decision, [6]).

17.The Board’s material analyses and findings, in gist, were as follows:

(1)  The 1^st applicant confirmed that her evidence “encapsulated the basis of” the 2^nd applicant’s claim (Board’s Decision, [9]).

(2)  Whether there is a genuine fear of harm is a question of fact, and the 1^st applicant’s evidence shows Husband to be someone with “poor impulse control and self-discipline” rather than someone with “the determination to hunt her down or to cause severe injury or harm on her” (Board’s Decision, [25], [34]).

(3)  The 1^st applicant confirmed at the hearing that her last personal contact with Husband was in 2016 (Board’s Decision, [35(a)]).  This was accepted by the Board (Board’s Decision, [73]).

(4)  However, in contrast with the 1^st applicant’s original version of events according to the “relevant documents” (i.e. the NCF etc.), in that the 2014 Arrests had occurred in 2014 (Board’s Decision, [7(e)]), her evidence at the hearing was that the 2014 Arrests were in fact made in October 2015 (Board’s Decision, [35]).  This stark inconsistency rendered the 1^st applicant’s allegations in relation to the Delivery Incident and the 2015 Assaults incredible, leading to the Board’s conclusion that such events were unsupported by reliable evidence and thus the finding that they did not take place (Board’s Decision, [35(a)-(b)]).

(5)  Regarding the 2014 Slapping Incident, in her NCF, the 1^st applicant claimed that she was slapped 3 times by Husband.  In stark contrast, her evidence at the hearing was that Husband “did not hit her or verbally threaten her” and that he was “just angry” (Board’s Decision, [35(c)(i)]).  Thus, the Board concluded that the 2014 Slapping Incident was unsupported by reliable evidence and thus did not take place (Board’s Decision, [35(d)]).

(6)  Regarding the 2014 Wooden Pole Incident, the 1^st applicant’s case as per her NCF was that she was struck by Husband with a wooden pole on the right side of her body (Board’s Decision, [35(c)(iii)], and that she was hospitalised for 3 days as a result (although no evidence was adduced in support of the alleged hospitalisation (Board’s Decision, [17]).  However, at the hearing, she testified that (i) Husband did not attack her with a wooden pole; (ii) there was only a verbal argument; (iii) Husband merely tried to slap her face but she managed to escape harmless; and (iv) she had not in fact been hospitalised at all (see Board’s Decision, [35(c)(iii)].  The Board therefore also concluded that the 2014 Wooden Pole Incident was unsupported by reliable evidence and thus also did not take place (Board’s Decision, [35(d)]).

(7)  While the 1^st applicant stated in her Notice of Appeal (filed with the Board) that her fear of harm was founded in her family, as her family apparently hated her for having a child with “other country men” and thus they would not be allowed to stay in their home (Board’s Decision, [35(e)]), she testified at the hearing before the Board that Husband and his relatives were her “only” source of fear and that her family would actually be supportive of the 2^nd applicant (Board’s Decision, [35(e)]).

(8)  Thus, while the Board accepted that General Incidents of Assault did occur; the 2014 Slapping Incident, the 2014 Wooden Pole Incident, the Delivery Incident, the 2015 Assaults and the 1^st applicant’s alleged hospitalisation, by reason of the unreliability and inconsistencies in her evidence in those regards, did not (Board’s Decision, [68]-[72]).

(9)  The Board found as a matter of fact that Husband, his aunt, his cousins and/or Husband’s boss did not have a real intention to harm or kill the 1^st applicant or to cause her serious injury (Board’s Decision, [77]-[78]).

(10)   Accordingly, the Board concluded that the harm suffered (and/or the fear thereof) did not reach the required minimum threshold of severity (Board’s Decision, [74]), and that is no real or substantial risk of harm (Board’s Decision, [77]-[78]).

(11)   As regards the 2^nd applicant’s claim, the Board concluded that any fear of harm or ill-treatment was speculative and unsupported by evidence, as (i) the 2^nd applicant had never been to the Philippines since his birth in Hong Kong; (ii) there is no evidence suggesting that he would be at any particular risk in the Philippines as an illegitimate child; (iii) there is no evidence suggesting that Husband even knew of the birth of the 2^nd applicant; (iv) the 1^st applicant’s family, according to her evidence at the hearing, was supportive of the 2^nd applicant, and that “in case [she] was sent back home, [she thinks her] family would help [her]” (Board’s Decision, [35(e)]).

(12)   There was no or no reliable evidence that the police, any public official or anyone wielding governmental authority has any influence over Husband and his associates, nor that the former had acquiesced in the alleged ill-treatment of the applicants (Board’s Decision, [80]-[81]).

(13)   In any event, according to the relevant Country of Origin Information (“COI”) (i) the Philippines have in place laws against violence against women and children; (ii) there are shelters and facilities available for women and children to seek refuge if necessary; (iii) there is adequate state protection (including from the police) available to minimise or reduce the risk of harm, if any (Board’s Decision, [51], [95]).

(14)   Accordingly, the applicants’ appeals were dismissed (Board’s Decision, [127]-[131]).

The Judge’s Decision

18.The applicants filed a Form 86 on 1 March 2019 (as amended by Order of the Judge) seeking to judicially review the Board’s Decision.  However, no grounds for review were advanced.  Further, no light was shed on the applicants’ proposed grounds for review in the 1^st applicant’s supporting affidavit, as she merely stated:  

“I would like to reject and review the decision made by [the Director] on my son and my case. They disregard our dangerous situation.”

19.Incidentally, as noted by the Judge, the applicants did apply for legal aid on 2 November 2021, but the application was refused by the Director of Legal Aid (Judge’s Decision, [5]).

20.In their submissions lodged with the court below on 11 August 2022, several “template” grounds were advanced (Judge’s Decision, [33]), which were dealt with by the Judge in his Decision at [34]‑[45].

21.After summarizing the facts and background of the case, giving consideration to the Decisions of the Director and the Board and the oral submissions of the 1^st applicant at the hearing for leave as well as her written submissions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [30] to [48] of the CALL-1 Form:

“30. The 1^st Applicant did not advance any grounds for judicial review in the Form 86. In her supporting affirmation, the only complaint she raised was that she disagreed with the decision of the Immigration Department as they disregarded her dangerous situation. The Court assumed for her benefit that this complaint is directed at the Board.

31. The essence of the Applicants’ complaint is that they disagreed with the finding of the Board that it is safe for them to return to their home country. In effect, they are seeking to challenge the Board’s finding of fact that they would not face any real harm or risk if returned to the Philippines. That is not permissible. In the absence of specific grounds of application, the Court in an application for judicial review 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.

32. At the hearing, after the legal principles in the preceding section had been explained to the Applicants, the 1^st Applicant confirmed they had no complaint about errors of law, procedural unfairness or irrationality in the Decision. The Court would not take her confirmation for granted, but will make its own independent assessment upon a vigorous examination of the Decision with anxious scrutiny.

33. In the Applicants filed a submission on 11 August 2022 advancing six specific grounds of review. The submission is very familiar to the Court as it has seen similar or even identical grounds in other applications. The submission appears like a template submission without regard to the actual facts of the case. In answer to the Court’s question, the 1^st Applicant’s first response was that the submission including the grounds was prepared by her. But she was unable to provide particulars or elaboration of the grounds. Then, she said it was prepared by the interpreter. When it was explained to her that it was unlikely, she said it was prepared by a non-governmental organisation. Nevertheless, there was no need to investigate that issue. The Court explained the grounds to her and explored them with her.

Ground (1) - Procedural impropriety: Failure to conduct sufficient due diligence

34. The particulars of this ground are as follows:

‘Failure to properly apply paragraph 2 of the UN Committee against torture General Comment No 2 whereby satisfaction of a National states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event, cf, the TCAB and the Director Decision which focussed on whether such reliefs showed merely signs of positive improvement.’

The 1^st Applicant was unable to elaborate on this ground and was unable to provide particulars about what reforms and means of relief introduced and relied on by the Board were not effective. All that she could say was that the law in the Philippines is different from the law in Hong Kong.

35. As the 1^st Applicant was unable to give particulars of this ground, it could not be assessed. This ground may probably be directed at the Board’s finding on the basis of the COI about availability of state protection against and assistance to citizens generally or victims of domestic violence in particular. The Board had considered COI, such as Country Reports on Human Rights Practices for 2017, issued by the State Department of the United States, Responses to Information requests: Philippines: Domestic Violence, including legislation, availability of state protection and support services for victims and Philippines: Domestic Violence, including legislation, recourse available to victims, including state protection, legislation and support services available to victims issued by the Immigration and Refugee Board of Canada. The COI are from authoritative and credible sources. The adoption of the facts reported in these COI are finding of facts within the province of the Board.

Ground (2) - Procedural impropriety: Failure to conduct sufficient enquiry into the relevant COI

36. The particulars of this ground are as follows:

‘[The Board’s] failure to conduct that [the 1st Applicant] and [the 2nd Applicant] would face serious risk from my enemies who will harm me because of my failed to repay the loan and current situation view which consider a serious matter for me which I would face definitely harm me upon refoulement.’

When asked to identify the COI which the Board had failed to conduct enquiries, the 1^st Applicant reply was that the Board should find that she would be at risk of harm returning to the Philippines. Her complaint is not about failing to make sufficient enquiry into the COI but about the Board’s finding of facts.

37. The particulars asserted under this ground is that the Applicants are at risk of harm because of their inability to repay the debt. The 1^st Applicant explained that the debt arose from her having used her husband credit card. She admitted that she had not advanced this ground in her claim. This was never an issue before the Director or the Board.

Ground (3) - Procedural impropriety/Irrationality: Failure to give reasons for assessment of lack of BOR 2 and BOR 3 Risks

38. The particulars of this ground are as follows:

‘Failure to reasons for assessment of Lack of BOR 2 risk and/or sufficient basis to support conclusion of lack of BOR 2 and BOR 3 Risk. It’s seems May be my claim is personal dispute against money lender but my fear is low frequency and definitely [the 1^st Applicant] and [the 2^nd Applicant] will harm by my enemies.’

39. Having vigorously examined the Decision with anxious scrutiny, this Court is satisfied that the Board had considered the evidence, made relevant finding of facts and given full reasons for refusing the Applicants’ claim under the BOR 2 Risk ground and BOR 3 Risk ground. There is no basis for the challenge: see ‘Overall Scrutiny’.

Ground (4) - Error/Misdirection in law:

40. The particulars of this ground are as follows:

‘Failing to take into account the considerations of psychological strain and threats to me personally or threats to me directly to kill me. My claim including with my son accompanied in this application, I was apply legal aid before any my legal aid case has been dismissed, so I would like to request consider my late grounds I am submitting.’

41. The 1^st Applicant was unable to identify the misdirection complained of. She admitted she had made no complaint about psychological strain and threat before the Director and the Board. She asserted that she did suffer psychological strain though she had not mentioned them in the NCF. As there was no such issue before the Board, there could be no factual basis in support of this ground.

Ground (5) - Procedural Impropriety -

42. The particulars of this ground are as follows:

‘The [Board] Failure to consider our fear that my enemies still fear for me, I and my son could no return to my country in this circumstance, therefore there are awaiting for me, and I could not relocate other places because they could easily trace me wherever I hide in my country. I am so worried about my son life that he was born in Hog Kong and never been in Philippine so my enemies easily could harm us if they found in Philippine.’

43. This is a direct challenge of the finding of fact of the Board which is not permissible save for errors of law, procedural unfairness or irrationality in the Decision.

Ground (6) - Procedural Impropriety - No sufficient basis to find that the Applicants are at risk

44. The particulars of this ground are as follows

‘No sufficient basis to conclude that [the 1^st Applicant] and [the 2^nd Applicant] would not be at risk of being subjected to torture and/or CIDTP upon refoulement.’

45. The essence of the Applicants’ complaint is that they disagreed with the finding of the Board that it is safe for them to return to their home country. In effect, they are seeking to challenge the Board’s finding of fact that they would not face any real harm or risk if returned to the Philippines. That is not permissible.

Overall scrutiny

46. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Court noted that the claim for non-refoulement protection includes a claim by a minor, ie the 2^nd Applicant. The Board did not seem to have made any separate assessment of the 2^nd Applicant’s claim. However, the 1^st Applicant had not advanced any separate claim in respect of the 2^nd Applicant. The factual basis of their claim is entirely the same. The 2^nd Applicant’s claim arose from the same factual matrix, ie the husband’s threats to and ill-treatment of the 1^st Applicant and the 2^nd Applicant’s birth outside of wedlock. The source of feared harm and risk of harm is the same, ie the husband and his relatives. The nature of the feared harm from the husband is the same, ie physical violence and death. The cause of the feared harm is similar, ie the 1^st Applicant having affairs outside of wedlock and the 2^nd Applicant being born outside of wedlock. The 2^nd Applicant’s claim is hinged on the 1^st Applicant’s and stands or falls with it. The 2^nd Applicant had never suffered any harm at the hands of the husband. The Applicants have not advanced any risk of harm specific to the 2^nd Applicant. There are clear indications that the Board had in mind the interest and claim of the 2^nd Applicant when making its Decision. The Court is satisfied that the Board had adequately considered all the harm and risk of harm facing the 1^st and the 2^nd Applicants.

47. Except in respect of the 2015 events, the Board accepted the 1^st Applicant’s account as she asserted and that she was genuinely in fear of harm from her husband and his associates. As the Court has noted in paragraph 23 when summarising the Board’s finding, the Board’s rejection of the 1^st Applicant’s evidence about the 2015 events may be an error of law. However, even accepting that it is, the error would have no adverse impact on the Decision because on the basis of the ill-treatment she suffered, the Board found the ill-treatment did not attain the requisite level of severity. On the basis of these primary facts, the Board made further finding of secondary facts, including that there was no objective basis for her fears and her feared risk of harm is not real. Furthermore, on the basis of authoritative and credible COI, the Board was satisfied that adequate state protection available to prevent the risk if it turns out to be real. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Then, by applying the law applicable to non-refoulement protection to all these facts, the Board found that the Applicants are not entitled as a matter of law to protection under any of the four applicable grounds under the USM. Insofar as any of these findings are mixed finding of facts and of the law, the Court could not detect any error of law in the Decision, or procedural unfairness at any stage of the non-refoulement proceedings or in the making of the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

48.  Leave to amend the leave application is granted, but the leave application as amended is refused.”

Grounds for appeal and hearing of the appeal

22.In the Notice of Appeal dated 11 June 2024, the applicants stated as follows:

“1. [The Board] and [the Director] failed to consider the fact I had raised in my claim that I and my son life would be at danger upon refoulement. We will be not safe to return back to my country.

2. Failure to consider our application ([the Board]) and the Director under BOR 3 risk.”

23.For the present appeal, the 1^st applicant acts in person.  She has been granted legal aid to represent the 2^nd applicant, who is now legally aided and is represented by counsel, Mr Andrew Leung.  At the hearing of the appeal, we granted leave to amend the description of the 2^nd applicant in the title of the appeal so as to properly reflect that he is suing by the 1^st applicant who acts as his next friend.

24.The 1^st applicant failed to lodge any written submissions in support of her appeal.  She is thus deemed to have abandoned the right to rely on written submissions.  At the hearing, she stated that she would like to be with the 2^nd applicant.

25.In his written submissions dated 25 July 2025 lodged for the 2^nd applicant (“A2’s Skel”), Mr Leung’s primary position is essentially that there was no independent enquiry regarding the 2^nd applicant’s circumstances, in that there had been no separate assessment or consideration by the Board in respect of the 2^nd applicant’s well-being upon refoulement (A2’s Skel, [5]). 

26.Mr Leung also submitted that:

(1)  By reason of the Judge’s criticism of the Board in respect of certain erroneous findings in respect of the occurrence of inter alia, the 2015 Assaults (discussed further below), the Judge accepted that Husband was prone to more aggression and violence against the 1^st applicant than which was accepted by the Board (A2’s Skel, [7]).

(2)  It was foreseeable that harm would be caused by Husband to the 2^nd applicant, as the Board found that Husband was still in touch with the 1^st applicant’s family members (A2’s Skel, [18]).

(3)  The Board should have separately considered, but did not consider, the fact that the 2^nd applicant was of mixed race and born out of wedlock and such impact if any on his well-being upon refoulement (A2’s Skel, [18]).

Discussion

27.We shall turn to the position of the 2^nd applicant, who is a minor, after determining the 1^st applicant’s appeal. 

28.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.  It is also well-established that the Board is under a duty to make its own finding of facts after a rehearing.  See M v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office [2021] HKCA 1523 at [21].  The decision by the Board will supersede the decision of the Director and will represent the final decision on the claim at the end of its processing.  See Re Moshsin Ali [2018] HKCA 549 at [45].

29.The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise 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 at [14(1)].

30.An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2) & (4)].

31.At the outset, it should be noted that the evidence of both applicants was contained in the NCF and the statements made at the initial screening interview (at least unless and until such is contradicted by the 1^st applicant’s oral testimony at the hearing before the Board).  They were legally represented at the time.

‘Erroneous findings’ by the Board

32.At the outset, we propose to first deal with the Board’s contentious conclusion which was subject to criticism by the Judge, namely the Board’s rejection of the factual occurrence of the Delivery Incident and the 2015 Assaults.

33.The Judge’s understanding of the matter (as is that of Mr Leung’s) was that the Board’s statement of the 1^st applicant’s evidence (at [35(a)] of the Board’s Decision) that the arrests of Husband’s aunt and cousins (i.e. the 2014 Arrests) had occurred in “October 2015” was erroneous due to a mistake in finding or a typographical error, because “on the evidence” (see Judge’s Decision, [20]), the relevant arrests took place in 2014, sometime after the 1^st applicant informed on Husband and others to the police in September 2014.

34.With respect, the Judge was labouring under a misunderstanding of his own.  For the following reasons, we do not consider that the Board had made an erroneous finding in this regard.

35.At [7(e)] of the Board’s Decision, the Board was setting out the 1^st applicant’s evidence as stated in her NCF (i.e. “the relevant documents”), which was that in 2014, after her witnessing of a meeting in her home between Husband, his boss, his cousins and his aunt etc. and her reporting this to the police, arrests were made and Husband’s aunt was eventually convicted and sentenced, whereas the cousins were “charged and were bailed out”.

36.Separately, at [35(a)] of the Board’s Decision, the Board was setting out the 1^st applicant’s evidence at the hearing, which it noted was starkly different to that in the 1^st applicant’s NCF, namely that the relevant arrests (i.e. the 2014 Arrests) took place in 2015.  The Board noted that had the 2014 Arrests been actually made in 2015, the 1^st applicant’s contentions regarding inter alia the Delivery Incident and the 2015 Assaults would simply not hold water.

37.As a result, because of these two “vastly inconsistent” versions of events, the Board found the 1^st applicant’s account of the Delivery Incident and the 2015 Assaults incredible and unsupported by evidence, leading to its conclusion that they simply (as a matter of fact) did not take place (Board’s Decision, [35(a)-(b)]). 

38.Accordingly, the very reason behind the Board’s mention of the arrests in “2015” was not that it was labouring under a mistake, but was to highlight the inconsistency in the 1^st applicant’s case in this respect, thereby providing justification for its eventual finding.

39.We are therefore of the view that the Board did not make an erroneous finding as stated by the Judge as regards its rejection of the occurrence of the Delivery Incident and the 2015 Assaults.  The argument by Mr Leung at [7] of A2’s Skel therefore falls away.

The 1^st applicant’s appeal

40.At [47] of the Judge’s Decision, the Judge held that notwithstanding the supposed error committed by the Board (which we have explained above to be no error at all), the Board was entitled to come to the conclusions that the General Incidents of Assault did not attain the requisite level of severity, that there was no objective basis for the 1^st applicant’s fear of harm, and that by relying on the relevant COI there was adequate state protection to mitigate against such fears or risks of harm, if any.  The Judge therefore concluded that leave to apply for judicial review should be refused.  

41.Our disagreement with the Judge’s findings on the Board’s alleged error in [19]-[21] of the Judge’s Decision, as explained above, if anything actually bolsters and affirms the Judge’s refusal of leave, as the basis for the 1^st applicant’s fear of harm is further weakened by the (as the Board found) non-occurrence of the Delivery Incident and the 2015 Assaults.  

42.Further, for completeness, by reason of the inconsistencies in the 1^st applicant’s evidence as identified by the Board, we do not see how the Board’s rejection of the 2014 Slapping and 2014 Wooden Pole Incidents could be said to be problematic or erroneous in the public law sense. 

43.Finally, it was undisputed that the 1^st applicant’s last personal contact with Husband was in 2016.  There was also no evidence before the Board that Husband had harmed the 1^st applicant’s family members in the Philippines nor that he still had an intention of pursuing her (Board’s Decision, [73]).   

44.Thus, as held by the Judge (at [47]), it was within the province of the Board as the adjudicator of fact to hold that, notwithstanding the General Incidents of Assault, the 1^st applicant failed to establish a real or substantial risk of harm upon refoulement. 

45.For these reasons, insofar as the 1^st applicant is concerned, the appeal has no merit. 

The 2^nd applicant’s appeal

46.Turning to the appeal by the 2^nd applicant, the proper approach to deal with children’s non-refoulement claims has been considered by the Court of Appeal in Fabio Arlyn Timogan and Re Jasvir Singh [2021] HKCA 53, which established that: 

(a)   Non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children.

(b)  Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided 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 by a parent that the children’s claims could be dismissed without further consideration of their personal situations.

(c)   Ill-treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child. 

47.The 2^nd applicant was born in Hong Kong and had never been to the Philippines.  In this case, his claim was premised fundamentally on the 1^st applicant’s claim that he would be harmed or killed by Husband (and/or his relatives) by reason of his status as an illegitimate child.[7]  

48.As regards the 2^nd applicant’s claim, the Judge held (at [46]) inter alia that as the “source”, “nature” and “cause” of the feared harm between the applicants are “the same”, the 2^nd applicant’s claim is “hinged on the 1^st applicant’s and stands or falls with it”.  With respect, we disagree.  Fabio dictates that even though the applicants in these contexts may share and reply upon a set of common primary facts, the outcome of their claims clearly do not ‘stand or fall’ together and that the minor’s claim in particular must be separately and properly assessed.

49.In this connection, the Judge held that the Board “did not seem to have” separately assessed the 2^nd applicant’s claim.  Oddly, the Judge also found (in the same paragraph of his Decision) that the Board had in mind the interest and claim of the 2^nd applicant when making its Decision and that it had adequately considered all the harm and risk of harm facing the 2^nd applicant (Judge’s Decision, [46]).

50.The above reasoning proffered by the Judge in reaching his Decision is, with respect, confusing and somewhat contradictory in places.  In this connection, we note that the Board had separately, albeit only very briefly (at [79] of its Decision), considered the possible impact of refoulement on the 2^nd applicant.  

51.Having carefully and anxiously scrutinised the Board’s Decision, although we disagree with Mr Leung’s submission at [5] of A2’s Skel that the Board had wholly failed to separately consider the 2^nd applicant’s position, we are of the view that the Board failed to give “due and separate consideration” to the 2^nd applicant’s claim.

52.As mentioned above, the Board at [35(e)] of its Decision found that the fear of harm (or the risk of it) on the part of the 2^nd applicant is merely speculative, and that there is no evidence suggesting that his status as an illegitimate child would increase the risk of ill-treatment.  For the following reasons, we find the Board’s analysis (at [79] of its Decision) problematic in several respects.

53.First, given that the 2^nd applicant was born in Hong Kong and has never been to the Philippines, he would inevitably have “had no adverse personal experience in the Philippines” (Board’s Decision, [79]).  However, this would not afford a reasonable basis for finding and assessing that he faces no risk of harm in the Philippines.

54.Second, at [85] of its Decision, the Board found that there was “no or no reliable evidence that the state of the Philippines was unwilling or unable to afford protect to [the 2^nd applicant]”.  This finding presumably drew support from the Board’s finding on adequate state protection and the related COI.  However, we note that the relevant COI (as referred to by the Board in [51] of its Decision) at most, in respect of children in need, referred to the availability of hospitals which may shelter children (and women) in need under the Women and Children Protection Program.  Nothing was said in the COI concerning possible protection against discrimination or adverse treatment for children like the 2^nd applicant, who is of mixed race and born out of wedlock.  It would appear that the Board has not given adequate separate consideration to the personal circumstances of the 2^nd applicant. 

55.Finally, one must not lose sight of the fact that the 2^nd applicant was not legally represented at the hearing before the Board.  Points or issues which may have been taken or raised in attempt to advance his case may have been overlooked or not pursued.  For instance, it is important to note that the case advanced by the 1^st applicant on behalf of the 2^nd applicant is that his fear of harm originated from Husband and/or his associates (Board’s Decision, [6]; Judge’s Decision, [6]). In this connection, the Board found that there was no evidence suggesting that Husband was/is even aware of the 2^nd applicant’s existence and thus no harm would befall upon the 2^nd applicant.  Mr Leung submits at [18] of A2’s Skel, with whom we agree, that as the Board had accepted that Husband was still in touch with the 1^st applicant’s family members, it is arguably foreseeable that Husband, should he eventually discover the existence and status of the 2^nd applicant, might be a cause of future harm to the 2^nd applicant.  It is also relevant to note that the Board accepted that Husband was violent and abusive and had been involved in illicit drugs activities.

56.In any event, we are of the view that the analysis and consideration of the 2^nd applicant’s position by the Board at [79] of its Decision is inadequate for the purposes of the requirements under Fabio.

57.For these reasons, we are unable to agree with the Judge’s conclusion that the Board had adequately considered “all the harm and risk of harm facing [the 2^nd applicant]” (Judge’s Decision, [46]).

58.Accordingly, we consider that leave should have been for the 2^nd applicant to apply for judicial review against the Board’s Decision.

Disposition

59.For the above reasons, the 1^st applicant’s appeal is dismissed.  For the case of the 2^nd applicant, we allow his appeal, set aside the Judge’s order and grant him leave to judicially review the Board’s decision. 

60.We make no order as to costs of the appeal, save that the 2^nd applicant’s own costs be taxed under the Legal Aid Regulations.