Bohol Marilyn Bilvestre and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 724/2022 [2026] HKCFI 5022 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 724 of 2022 BETWEEN
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 To:
Observations for the Applicant: Introduction 1.This is the Applicants’ application by Form 86 filed on 4 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 27 October 2021 (the “Decision”) dismissing their appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 December 2020 refusing their application for non-refoulement protection (the “Notice”). 2.A hearing on 12 August 2026 had been scheduled for the Applicants. Notice of hearing had been sent to them by post on 6 July 2026 to their address as stated in their Form 86 and confirmed by the Immigration Department on 27 February 2026 to be their latest up-to-date address. The notice has not been returned in the course of mail. The Applicants had never informed the court of any change of address since filing their Form 86. There is nothing to suggest that they had not received the notice of hearing or had moved. Attempts were made on the afternoon of 11 August 2026 to contact them on the telephone number provided by the Immigration Department to remind them of the hearing, but the calls were not answered. The Court was satisfied that the notice of hearing had been duly served on the Applicants and that the Court had tried its best endeavour to bring the hearing to their notice. They did not appear at the hearing. Having considered the nature of the application, the issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered the leave application may be justly determined on paper without an oral hearing. The delay in taking out the leave application 3.The leave application was filed nine months and eight days after the date of the Decision sought to be reviewed. Under section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, a leave application shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers there is good reason for extending the period within which the application shall be made. The leave application was made more than six months beyond what is usually regarded as having been promptly made. The Applicants have to show good reason for extending the time to file the leave application. 4.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 granting extension, the court would be more relaxed with the remaining two. Conversely, if it is against the granting 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. 5.Despite clear warning in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicants provided no explanation for the late application. By not attending the hearing, they forewent their last opportunity to have the reason for their delay explored by the Court. They have no explanations for the substantial delay which would invoke the principle in Po Fun Chan v Winnie Cheung. However, the 2nd Applicant is a minor. He could not have taken out the application by himself and should not be made to suffer for the neglect of his mother representing him. Hence, the Court would consider the merits of the minor’s application first before deciding to refuse them extension of time to file the leave application. Legal representation for the 2nd Applicant 6.As the 2nd Applicant is a minor, the 1st Applicant representing her had been advised by letter from this Court on 20 March 2026 of the requirement 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 been advised to seek legal representation from a private lawyer or from the Legal Aid Department. They did not respond and did not appear at the hearing. No memorandum of application for legal aid had been received from the Director of Legal Aid. Having considered the merits of the application, the Court considered their leave applications may be justly determined without causing any prejudice to the 2nd Applicant due to lack of legal representation. Hence, the Court treated the absence of legal representation a mere irregularity which would not have the effect of rendering the proceedings void and that the leave application may be justly determined without the Applicants being legally represented. Background 7.The Applicants are Filipino nationals, now aged 44 and 7 respectively. The 1st Applicant is the mother of the 2nd Applicant. She last arrived in Hong Kong on 26 February 2013 to work as a foreign domestic helper. She overstayed since 14 April 2015 after her employment was terminated. On 7 July 2016, she raised a non-refoulement claim. Her claim was deemed withdrawn due to her inaction. She gave birth to the 2nd Applicant in 2019. She was allowed to re-open her claim in September 2020. Their claim was assessed on all applicable grounds under the Unified Screening Mechanism (the “USM”) and rejected by the Director’s Notice. Their appeal was dismissed by the Board’s Decision. They now seek leave to apply for judicial review of the Board’s Decision. The Applicants’ case 8.The Applicants’ personal background, the basis of their claim, the arguments they advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[3] for reference. In gist, they claim, if returned to the Philippines, they will be harmed or killed by the friend of the 1st Applicant’s mother (the “Friend”) because of a land dispute. 9.The 1st Applicant’s case as advanced in her non-refoulement claim form (“NCF”) is that at the suggestion of her mother (the “mother”), she lent 27,000 Pesos to the Friend for a term of one year. In return, the Friend offered her farmland (the “farmland”) and its title deeds as collateral and the 1st Applicant’s family were allowed to farm on the land and keep the proceeds. The 1st Applicant’s intimate partner (the “intimate partner”) farmed on the farmland. However, when the Friend noticed that the 1st Applicant’s family could make money out of the farmland, she demanded to get the farmland and title deeds back before the loan was due. Thereafter, the Friend’s people who passed by the mother’s house everyday, shouted and threatened the mother to return the title deeds otherwise someone in the family will die. One day, the intimate partner was killed by gun shot on the farmland. Out of fear, the mother and her family moved to another town in Kiamba, which was three minutes’ away on foot from where they formerly lived. Thereafter, nothing adverse happened to them. In 2018, the mother returned the title deeds to the Friend. 10.The 1st Applicant believed her intimate partner was killed by the Friend’s people. As the Friend knew she had given birth to the 2nd Applicant in Hong Kong, the 1st Applicant fears that the Friend will also kill her and the 2nd Applicant, should they return to the Philippines. She confirmed that the 2nd Applicant’s claim is based on her case and relies on her NCF. The finding of the Board 11.The 1st Applicant testified before the Board. The Board found inconsistencies and contradictions among her testimony, her evidence in the NCF and her evidence in the record of screening interview (the “RoI”). She said in her NCF that she does not know the name and background of the Friend. But she told the Board that she had known the Friend for a long time and knew her as Mrs Halasan. She described how she came to know the Friend when she visited her grandmother’s home in Zamboanga, Mindanao, that the Friend lived about 15 minutes away from her grandmother by motorcycle, that the Friend invited her to her home for eating and that the Friend ran a lot of fields. When confronted with the various inconsistencies, she replied that she totally forgot the Friend’s name but remembered it at the time of the oral hearing. In her NCF, she said the Friend knew she had given birth to her son (i.e. the 2nd Applicant), but in answer to the Board’s question she said her Friend did not know she had a son. Her explanation for the inconsistency is that she meant her Friend did not learn about her son from her but through Facebook, perhaps. But, later in her testimony, she said her Friend learned about her son from her cousin. As the Board considered the inconsistencies and contradictions touched on material aspects of the 1st Applicant’s case, it found her evidence not credible. It found the Applicants had failed to establish the claimed ill-treatment as it is founded on evidence, the significant parts of which, are not reliable. It therefore dismissed their appeal. This is the Board’s primary decision. 12.However, the Board went on to assess the Applicants’ claim on the basis that what the 1st Applicant told the Board was true. It found there was no evidence that the intimate partner had ever told the 1st Applicant about threats from the Friend. It found there was nothing to show that her intimate partner was killed by the Friend or her people. Notwithstanding that the Board accepted her intimate partner was shot dead on the farmland and that the people harassing the mother had threatened that someone in the family would die if she did not return the title deeds to the Friend, the Board refused to draw the inference that the intimate partner was killed by the Friend and her people. 13.The Board accepted the 1st Applicant’s evidence in her NCF and RoI that her mother had moved to another town in Kiamba and that nothing adverse had happened to them since. That was 2013. The 1st Applicant also told the Board in her testimony that her mother had returned the title deeds to the Friend three years prior to the hearing before the Board. That was in 2018. The Board also noted from the 1st Applicant’s NCF dated 16 October 2020 that her mother’s current address is in Bialong. Thus, since moving to another town in Kiamba, her parents had moved sometime before October 2020 back to Bialong where they originally lived. The Board took that as an indication that the 1st Applicant’s parents are no longer in fear of harm from the Friend and her people. In fact, for eight years since moving to another town in Kiamba, nothing adverse happened to her parents. 14.As the mother is the one who passed the loan to the Friend and the one who kept the title deeds of the farmland, the Board found that she was the Friend’s principal target. But nothing adverse has ever happened to her. Hence, the Board found it is unlikely that the Friend and her people would do anything harmful to the Applicants upon their return to the Philippines. This is all the more so as the title deeds had been returned to the Friend three years ago. Hence, the Board found it highly unlikely that the asserted risk of harm will materialize upon the Applicants’ return to the Philippines. 15.In her testimony, the 1st Applicant said that her parents did not seek assistance from the police regarding the threat from the Friend because they had moved to another town in Kiamba, albeit just three minutes’ walk away is far from Zamboanga where the Friend lives. She also said the government in Kiamba is fair and she can go back home. Hence, the Board found the adequate state protection would be available to the Applicants on their return to the 1st Applicant’s home town. The 1st Applicant also agreed with the Board that she and the 2nd Applicant could relocate to Manila and Cebu upon their return to the Philippines to avoid the risk of harm from the Friend. 16.Applying the law applicable to the non-refoulement protection under the USM to the Applicants’ claim as the 1st Applicant asserted, the above risk assessment and to some further facts it found, the Board came to the further and alternative conclusion that the Applicants had failed to establish their entitlement to protection under any of the applicable grounds under the USM. 17.On these two basis, the Board dismissed the Applicants’ appeal against the Director’s Notice. Legal principles applicable to judicial review 18.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[4]. Grounds for judicial review 19.The Applicants did not advance any grounds of application in their Form 86. In the 1st Applicant’s supporting affirmation, she only annexed a copy of the Decision. In the absence of particularised grounds of application, the Court in an application for judicial review could only focus on errors of law, procedural unfairness and irrationality in the Decision. Overall scrutiny – 1st Applicant’s leave application 20.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 applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a high standard of fairness. 21.The Board found the 1st Applicant not credible and her evidence unreliable. It was not satisfied that she had proved the factual basis in support of her claimed fear and risk. In the further and alternative, it assessed her claim on the basis of the case as she asserted and some further finding of fact based on her case. It found even on that basis, the 1st Applicant is not entitled to protection under any of the applicable grounds under the USM. Its findings in the primary decision and alternative decision are mixed findings of law and of fact. Insofar as its finding of law is concerned, the Board is absolutely correct. Insofar as its finding of fact is concerned, it is exclusively within the realm of the Board, which the Court in a judicial review will not interfere, save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decision. The Board gave full reasons for its findings. Its finding under its alternative decision is particularly strong and solid. On the evidence, it was open to the Board to make the findings of fact as it did. 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 1st Applicant had failed to discharge her burden of proving her fears and risks. The proposed judicial review in respect of the 1st Applicant has no realistic prospect of success. Overall scrutiny – 2nd Applicant’s leave application 22.The 1st Applicant representing the 2nd Applicant confirmed to the Board that the “2nd Applicant relies on her totally”. The Board seemingly accepted that and for the same reasons as discussed in paragraphs 11 to 17 above, it found the 2nd Applicant along with the 1st Applicant are not entitled to protection under any of the applicable grounds. In essence, the Board primarily found the 1st Applicant had failed to prove the threat and risk of harm; and in the further and alternative, that even if the threats were proven, the risk of harm is very unlikely to materialise. 23.This leave application was heard 11 months after the Court of Appeal’s landmark decision in Fabio Arlyn Timogan[5]. In that case, the Court of Appeal held that the following general propositions apply to the determination of non‑refoulement claims by children claimants, especially those of tender age (say for those younger than 12 years old), by the decision-maker[6]:
24.Fabio had not been referred to by the Board. It appears from the Decision that the Board made one composite assessment in respect of both Applicants. It did not assess the 2nd Applicant’s claim separately from her mother and without considering her personal circumstances. This Court understands that the 2nd Applicant’s case is hinged on the same set of facts as the 1st Applicant’s. In the absence of special circumstances peculiar to the minor child, the child’s claim would stand or fall with the mother’s. However, on the facts of the instant case it appears that there may be some minor specific risks arising from the 2nd Applicant’s personal background, which may not even have been appreciated by the 1st Applicant or the Board. The 2nd Applicant was born out of wedlock, her father is a Pakistani (which was not even mentioned by the Board). She was born in Hong Kong and had never been to the Philippines. If refouled to the Philippines, she may be a total stranger there and may attract discrimination or attention because of her being born of mixed blood (which may or may not be apparent) and born out of wedlock. This Court is not suggesting that these are real risks. These are examples of minor specific risks which even the mother representing the minor may overlook or not appreciate due to lack of legal representation. It is regrettable that the 2nd Applicant was not legally represented before the Board or before this Court. However, the high standard of fairness and the duty of joint endeavour would require the Board to explore into such minor specific risks. Because of his personal background, the 2nd Applicant’s claim may not necessarily fall with the dismissal of his mother’s claim. It is therefore at least arguable that the Board’s Decision is the result of an error of law or procedural unfairness arising from its breach of the high standard of fairness in the assessment of the 2nd Applicant’s claim. Conclusion 25.As there are no merits in the 1st Applicant’s leave application and her leave application was not promptly made, extension of time for her to apply for leave to apply for judicial review and her leave application are refused. As the 2nd Applicant is a minor and there may be prospect of success in his intended application for judicial review, extension of time for him to apply for leave to apply for judicial review, Hence, his leave application is granted on the above grounds. 26.The 1st Applicant representing the 2nd Applicant is specifically reminded that she should issue an originating summons on behalf of the 2nd Applicant to apply for judicial review and to serve the same on the Director within fourteen days of this decision. For the interest of the 2nd Applicant, she should apply for legal assistance from the Legal Aid Department as quickly as possible. Dated the 4th day of September 2026
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] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000724_2022_files/the_Board's_Decision.pdf [4] [2018] HKCA 524 at [14(1)] [5] CACV 32/2020, [2020] HKCA 971 [6] Fabio Arlyn Timogan, at paras 34 ‑ 35 |
Cases cited in this judgment