Bilug Elizabeth Malab and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1249/2025

[2025] HKCFI 6381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1249 of 2025

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge K.W. Lung:

1.  Leave to apply for Judicial Review be refused; and

2.  Non-compliance with Order 80, rule 2 of the RHC in these proceedings be treated as a mere irregularity without rendering the 2^nd applicant’s application a nullity.

Observations for the Applicants:

THE APPLICATION

1.The 1^st applicant, is the mother (“the mother”), also acting as guardian ad litem of the 2^nd applicant is her son, aged 4 (“the son”).

2.The applicants jointly apply for leave to apply for judicial review of the 2 Decisions dated 23 December 2024 of the Torture Claims Appeal Board (“the Board’s Decisions”).  One Decision deals with the mother’s appeal.  Another Decision of the same date deals with the son’s appeal.  I shall call these 2 Decisions as (“the Board’s Decision on the Mother”) and (“the Board’s Decision on the son”) respectively.  The son’s claim relies on the mother’s facts.

3.The applicants did not ask for a hearing.  Having considered the merits of the case, I consider that it is not necessary to hear the mother for this application.

The applicants

4.The mother is a national of the Philippines.  She is an illegal immigrant, having come to Hong Kong to work as a domestic helper on 12 February 2019.  She did not depart after her employment contract had prematurely terminated.  She gave birth to the son on 19 October 2021.  She surrendered to the Immigration Department on 11 July 2022.  In November 2022, she lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her creditor in the Philippines.  Her creditor, Arlene, had threatened to hire killers to kill her if she failed to repay the debt.  On 16 March 2023, she lodged another non-refoulement claim to the Director on behalf of the son for the reason that her son will also be harmed or tortured by her creditor if he returns to the Philippines.

5.Details of the facts are set out in the Board’s Decisions.  See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001249_2025_files/the_Board's_Decision.pdf

The Director’s Decisions

6.The Director considered the applicants’ claims in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By way of Notice of Decision dated 23 December 2022 (“the Director’s Decision on the mother”) and another Notice of Decision dated 20 July 2023 (“the Director’s Decision on the son”), the Director dismissed their claims on all applicable risks because their claims were unsubstantiated.

The Board’s Decisions

The mother’s appeal

8.The mother appealed the Director’s Decision on the mother to the Board. On 9 May 2023, the Board conducted an oral hearing for her appeal.  She has given evidence and answered the Board’s questions.

9.Having considered the evidence, the Board made the findings below.

(1)  The Board accepted the core aspects of her claim about the past events in the Philippines. [84]

(2)  For the reasons given in paragraphs 92-100, state protection will be available to the applicant if she returns to the Philippines.

(3)  Her claim on torture risk therefore fails. [102]

(4)  For the reasons given in paragraphs 103-115, the Board found that internal relocation is viable [114] and therefore, her claim on BPR 3 fails.

(5)  For the reasons given in paragraphs 117-123, the Board rejected her claim on Prosecution risk.

(6)  BOR 2 risk was not established. [125]

10.It therefore dismissed her appeal and confirmed the Director’s Decision on the mother. 

The son’s appeal

11.On behalf of the son, the mother appealed the Director’s Decision on the son to the Board.  On 13 October 2023 and 29 February 2024, the Board conducted a hearing for the appeal.  The mother also appeared before the Board and gave evidence for her son.

12.Having considered the evidence, the Board had made the findings below.

(1)  The mother’s claim failed.

(2)  There are government agencies and NGOs in Philippines to help women and children who have to leave their home areas in fear of violence and it is also possible to have protection from the authorities. [34]

(3)  The mother agreed that the son was a citizen of the Philippines because of her status as a citizen.[40]

(4)  The mother was unable to explain why her creditor would harm the son. [41]

(5)  The son would have the same rights and entitlements as other citizens born in the Philippines. [42]

(6)  The mother had no worry on discrimination of the son because of the fact that he was a mixed race child. [43]

(7)  The son should not be subjected to any of the applicable risks if he returns to the Philippines with his mother.

13.It therefore dismissed the son’s appeal and confirmed the Director’s Decision on the son.

Application for leave to apply for judicial review

14.The applicants have filed Form 86 for leave to apply for judicial review of the Board’s Decisions.

15.In the mother’s affidavit in support of their application, the mother has not raised any specific reasons to challenge the Board’s Decisions.

DISCUSSION

16.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decisions on the applicants’ appeal.  The Court will not usurp the fact-finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

18.The Board had considered the cases of the mother and the son separately. I am satisfied that the Board’s assessment of the appeal had reached higher standards of fairness as determined by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, and the Board had considered carefully the child specific issues before making its decisions on the son’s appeal.  I take the view that there was no other child specific issue, which should have been raised and considered by the Board, but was not considered by the Board because of lack of legal representation for the son.

19.The mother has not raised any valid ground to challenge the Board’s Decisions. 

20.The applicants therefore fail to show that there is any realistic prospect of success in their intended judicial reviews.

DISPOSITION

21.I refuse to grant leave to the applicants to apply for judicial review of the respective Board’s Decision on the mother and the Board’s Decision on the son. Accordingly, I dismiss their joint application.

22.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the son’s application a nullity.

Dated the 30^th day of December 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