Mago Shyr Adame and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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CACV 78/2026, [2026] HKCA 1276 On Appeal From [2026] HKCFI 327 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 78 OF 2026 (ON APPEAL FROM HCAL NO 2080 OF 2023) ________________________ BETWEEN
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_____________________ JUDGMENT _____________________ Hon Winnie Tsui J (giving the Judgment of the Court): 1.This is the 1st and 2nd Applicants’ appeal against the order of Deputy High Court Judge To (“the Judge”) dated 15 January 2026 (“the Order”) refusing to grant leave to apply for judicial review of (i) the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 17 October 2023 (“the Board’s 1st Decision”), whereby the Board dismissed the 1st Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 4 July 2023, and (ii) the decision of the Board dated 6 June 2025 (“the Board’s 2nd Decision”), whereby the Board dismissed the 2nd Applicant’s appeal against the decision of the Director dated 14 February 2025. 2.The 1st and 2nd Applicants are mother and son (a minor), and are nationals of the Philippines. The 1st Applicant alleges that, if refouled, she will be harmed or killed by her husband (Aziz Onte Mago) because she had a relationship with an Indian man (Ali Haider) in Hong Kong, and subsequently gave birth to the 2nd Applicant out of that relationship. As for the 2nd Applicant’s claim, the basis is that he will be harmed by the 1st Applicant’s husband and her family if refouled to the Philippines, and/or by the family of his father if refouled to India because he was born out of wedlock. 3.The Applicants’ backgrounds, the bases of their claims, and the findings of the Board and its reasons for dismissing their appeals against the respective decisions of the Director have been set out in detail in the 1st and 2nd Board’s Decisions respectively, and summarised by the Judge in the Judge’s decision (see §§4-10 of the CALL-1 Form). We do not propose to repeat them here. 4.In the proceedings before the Judge, both the 1st and 2nd Applicants were not legally represented. The Judge’s reasons for dismissing the Applicants’ leave application are set out at §§13 and 14 of the CALL-1 Form. In gist, the Judge held that the Applicants did not advance any or any valid grounds for their intended judicial review of the respective decisions of the Board. The Judge also considered that although the 1st Applicant did not raise any child-specific claim for the 2nd Applicant, the Board had considered the 2nd Applicant’s claim separately with regard to his personal circumstances. The Judge was satisfied that there was no error of law, Wednesbury unreasonableness or irrationality in the Board’s refusal of the respective appeals by the Applicants against the Director’s decisions, nor any procedural unfairness in coming to the Board’s conclusions. THIS APPEAL 5.In the Notice of Appeal filed by the 1st Applicant for herself and on behalf of the 2nd Applicant on 28 January 2026, the 1st Applicant states that the Judge’s decision was unreasonable and that she has more information to provide to prove her case. The 1st Applicant does not give any particulars for her contentions. 6.According to a memorandum filed with the court on 13 February 2026 by the Director of Legal Aid, an application for legal aid was made by the 1st Applicant on behalf of the 2nd Applicant. According to another memorandum filed with the court on 16 April 2026, that application was refused. The 1st and 2nd Applicants are both not legally represented in the present appeal. At the hearing, the 1st Applicant confirmed that she would represent the 2nd Applicant in the appeal. 7.In her written submissions lodged on 8 June 2026, the 1st Applicant merely repeats the factual basis of her claim, and her fear of being killed by her husband upon refoulement. 8.At the hearing of the appeal, the 1st Applicant had nothing to add to the written submissions. Notwithstanding what she stated in the Notice of Appeal, she confirmed to the court that she had no further information to provide. DISCUSSION The 1st Applicant 9.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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 of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)). 10.Further, the assessment of evidence, country of origin information, 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, at §13. No such error of law or procedural unfairness or irrationality in the Board’s 1st Decision is shown in the present case. 11.The 1st Applicant has failed to raise any viable ground of appeal against the Order. 12.The 1st Applicant’s appeal has no merits, and is dismissed. The 2nd Applicant 13.The 2nd Applicant is a minor. The Court’s approach in considering a minor’s claim for non-refoulement protection is well established, and has been set out in Fabio Arlyn Timogan [2020] HKCA 971 and Re Jasvir Singh [2021] HKCA 53. It is not necessary to repeat the same in this judgment. 14.The Board considered the 2nd Applicant’s appeal separately from the appeal of the 1st Applicant. 15.The Board found the 1st Applicant’s claim was entirely speculative and without basis, and therefore rejected her claim (see §63 of the Board’s 2nd Decision). The Board did not accept that the 1st Applicant’s husband had any real intention to harm either of the Applicants (see §62 of the Board’s 2nd Decision). In our view, the 2nd Applicant’s claim, insofar as it is premised on the same factual basis underlying the 1st Applicant’s claim, is left with no factual support. Having found that there were no substantial grounds for believing that the 2nd Applicant would face any real risk of harm from the 1st Applicant’s husband if refouled to the Philippines (see §66 of the Board’s 2nd Decision), the Board was entitled to dismiss the 2nd Applicant’s appeal on the basis of the evidence before it. 16.The Board further found that (i) the 2nd Applicant’s status as an illegitimate child born in Hong Kong would not prevent him from enjoying the same rights to education, health care and other benefits than other citizens in the Philippines, and (ii) there was no evidence to show that he would be discriminated against in the Philippines because of his religion as a Muslim (see §64 of the Board’s 2nd Decision). 17.The Board also proceeded to consider the 2nd Applicant’s claim in the context of his other country of nationality, India. The evidence before the Board was that the family of the 2nd Applicant’s father had accepted the 2nd Applicant. The Board found that there were no substantial grounds for believing that the 2nd Applicant would face any real risk of harm or ill-treatment in India if he was to return there with his father (see §§67 and 68 of the Board’s 2nd Decision). 18.We do not see any materials in the present case that may give rise to a concern that there may be any non-refoulement grounds which relate specifically only to the 2nd Applicant but had not been advanced to the Board or considered by it because of the lack of legal representation on his behalf before the Board. 19.There is no viable ground of appeal against the Order raised by or on behalf of the 2nd Applicant. 20.The 2nd Applicant’s intended judicial review is not reasonably arguable. So is his appeal against the Judge’s decision. Accordingly, we dismiss the 2nd Applicant’s appeal. 21.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 2nd Applicant’s appeal a nullity.
The 1st and 2nd Applicants, appearing in person |
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