Policarpio Glecy Bagalay and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1550/2023 [2026] HKCFI 5171 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1550 of 2023 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: Leave to apply for Judicial Review be refused. Observations for the Applicants: Introduction 1.This is the Applicants’ application by Form 86 filed on 4 September 2023 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 18 August 2023 (the “Board’s Decision”) dismissing their appeals against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 2 August 2022 (the “First Decision”) and 18 May 2023 (the “Second Decision”), refusing respectively the 1st and 2nd Applicants’ application and the 3rd Applicant’s application for non-refoulement protection. 2.The Applicants are Filipino nationals. The 1st and 3rd Applicants are natural mother and father of the 2nd Applicant (respectively, the “Mother”, “Father” and “Daughter”). The Daughter is a minor, now aged four. She is represented by her Mother, the 1st Applicant herein. 3.The Mother representing the Daughter had been advised by this Court’s letter dated 24 February 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 her 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. She applied for legal aid on the 2nd Applicant’s behalf on 11 May 2026, but her application was refused by the Director of Legal on 21 July 2026. There is nothing to suggest that she had sought private legal representation for the Daughter. 4.The Applicants had requested an oral hearing. A hearing on 12 August 2026 was scheduled and notice of hearing were sent to them by post on 24 July 2026 to their address as updated by them on 11 December 2023 and confirmed by the Immigration Department on 9 March 2026; and to their last known address discovered from the Immigration Department on 3 October 2023. Neither of the notices has been returned in the course of mail. The Applicants had never informed the court of any change of address since 11 December 2023. There is nothing to suggest that they had not received the notice of hearing. Attempts were made on the afternoon of 11 August 2026 to contact them by telephone through the two telephone numbers provided by them and the Immigration Department to remind them of the hearing, but the calls were not answered. This 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. 5.Having considered the applicable legal principles, the Decision, the papers, the leave application, the issues raised, the fact that Applicants had been legally represented before the Director, that no new evidence would be advanced, that the 2nd Applicant’s legal aid application had been rejected and no steps seem to have been taken to seek private legal representation for her and all the circumstances, the Court considered their leave application may be justly determined without prejudicing the 2nd Applicant’s interest due to lack of legal representation. The Court also considered that the leave application may be justly determined on paper without an oral hearing and that the absence of legal representation for the 2nd Applicant is a mere irregularity which would not render the proceedings void. Hence, the Court proceeded to make the determination. The background 6.The Mother last arrived in Hong Kong in February 2019 to work as a domestic helper. She overstayed after her employment was terminated in July 2021. She surrendered to the Immigration Department on 2 November 2021and lodged a non-refoulement claim. She then developed a relation with the Father and gave birth to the Daughter in January 2022. Their claims were assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”) and rejected by the Director’s First Notice. They appealed the First Notice to the Board. 7.The Father entered Hong Kong in July 2018 as a visitor and overstayed. He surrendered to the Immigration Department in August 2018 and then absconded until he was arrested in March 2023. He lodged a non-refoulement claim on 28 March 2023. His claim was was also assessed on all four applicable grounds under the USM and rejected by the Director’s Second Notice. He also appealed the Second Notice. 8.At the Applicants’ request, the Board considered their claims jointly as one family and dismissed their appeal. The Applicants now seek leave to judicially review the Board’s Decision. 9.The factual background leading to the present application, the basis of the Applicants’ 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[1] for reference. The Mother’s and the Daughter’s claims 10.The Mother married her husband (the “Husband”) in around 2005. They have two children out of that marriage. The Husband often assaulted the Mother, especially when he was drunk and caused her minor injuries. In 2006, the Mother separated from her Husband and returned to her maternal home with her two children after learning that he had father another child with another woman. In 2015, the Mother began a new relationship with a former high school classmate (the “former boyfriend”) who is also known to her Husband. She gave birth to her third child. Her Husband was very angry and threatened to report the Mother for adultery which is a punishable crime in the Philippines and to kill her. To support her three children, the Mother separated from her former boyfriend and went to work in Hong Kong in 2017. She left her two elder children to the care of her parents and left the third child to the care of her former boyfriend’s mother. She remitted part of her income to her father and her former boyfriend’s mother for the maintenance of her three children. After her employment was terminated, the Mother was unable to remit money back to the Philippines. Upon learning that the Mother had given birth to the Daughter with yet another man, the Husband went to the Mother’s maternal home a few times and delivered threats against the Mother. The Mother claims fear of harm to her and the Daughter from her Husband and his relatives who are members of the police and/or violent gangs for giving birth to her third child with her former boyfriend and the Daughter with the Father; from her former boyfriend for giving birth to the Daughter with the Father; and from the Philippine authorities for committing adultery. They claim they could not access internal relocation because they do not have the means to and they cannot access state protection because of the Husband’s relatives in the police and violent gangs. The Father’s claim 11.The Father said while he was at his parent’s house in his home village on 2 April 2018, Mr SV who is the nephew of an independent elected member of the local council Mr MV came and proposed to marry the Father’s cousin (the “Cousin”). As the Cousin already had a boyfriend in the capital city, she refused the proposal. Mr SV became very angry. He damaged some household items and left the gathering. 12.In the early hours of 3 April 2018, Mr SV returned with five to ten friends armed with knuckle rings, rocks and knives and made a scene. They attempted to abduct the Cousin. The Father and his relatives intervened. A mass melee broke out. In the commotion, the Father struck Mr SV’s head with a tree trunk. Mr SV bled and fell unconscious. Two of Mr SV’s friends (the “victims”) died in the fight. The Father was not injured. Police was called. Mr SV was taken to hospital. The police made some inquiries, but no one was arrested. The Father believes that was because the victims were trespassing at the gathering. 13.On the night of 4 April 2018, two unknown men riding motorcycles came to the Father’s house in town (the “4 April Incident”). They kicked down the door of the Father’s house. The Father’s uncle who lived nearby called the police. Then the two men left. The Father made a report to the police. He believes the two men were sent by Mr SV. Feeling unsafe, the Father caught a bus to Manila. 14.A week later, a relative of the Father (the “Relative”) told him that Mr SV died in the hospital. The Father believes Mr SV died from the injuries he inflicted. Out of fear, the Father left Manila and came to Hong Kong. In December 2018, his Relative told him that Mr MV blamed him for the death of Mr SV. In January 2023, the Father received a text message from Mr MV threatening to kill him if he returns to the Philippines. In addition, since May 2021, the Husband had sent four death threats to the Father via the Mother’s mobile phone which she shared with the Father. In January 2023, the Mother also told the Father that her Husband had made another death threat to the Father if he returns to the Philippines. 15.The Father claims fear of harm from the relatives of Mr SV and the Philippine authorities for having caused the death of Mr SV and from the Husband and relatives of the Mother for her giving birth to the Daughter. Finding of the Board – the Mother’s claim 16.The Board found significant inconsistencies and contradictions between the Mother’s and the Father’s evidence about the Husband’s relative who is a police officer and the violent drug gangs in her Husband’s home village. It was the Mother’s evidence that her Husband’s home village is notorious for gangs connected to the drug trade and that some of her Husband’s relatives are gang members. She said her Husband had told her father about this relative but she did not know his name or position in the police. In striking contrast, the Father said the relative is the Mother’s cousin. The Father also said that the Husband is a drug addict and a gang member. Apart from the contradictions, the Board found it concerning that while the Father’s knowledge of the Husband and his relatives was more detailed than the Mother’s, he also said he did not even know the Husband’s name and did not know the Mother was even married to the Husband until May 2021 when the Husband sent the first threatening message to their shared mobile phone. 17.When the Board explored the above inconsistencies with her, the Mother put the blame on the quality of the interpretation by the interpreter at her screening interview (“Ms A”) who also happened to be the interpreter at that hearing before the Board (the “first hearing”). The Board adjourned that hearing to arrange for a different interpreter. It gave the Mother a “temporary benefit of doubt” that she had complained to the immigration officer about the quality of Ms A’s interpretation. The Board considered this issue very carefully. Both the Mother and the Father had reasonable English skills, but they had no complaint about Ms A’s interpretation up until the Board brought up the issue of inconsistencies in the Mother’s evidence. To the Board’s observation there were no communication difficulties between they and Ms A. The Board also had no concern about the quality of Ms A’s interpretation during the first hearing up until the issue of the Mother’s inconsistency was raised. Both the Mother and the Father requested to continue the hearing which indicated their acceptance of the quality of Ms A’s interpretation. However, the Mother claimed that she had never seen Ms A before because the interpreter whom she complained had a markedly different body-size to that of Ms A. According to the official records, albeit of the Immigration Department, that must be incorrect. Nevertheless, to discharge its obligation to meet the high standard of fairness, the Board adjourned the hearing and arranged for a change of interpreter at the next hearing. In the ultimate analysis, the Board did not find it necessary to disregard the evidence it received from the Father and the Mother with the assistance of Ms A as interpreter: see paragraphs 58 to 65 at pages 22 to 24 of its Decision. 18.The Board largely accepted the Mother’s evidence. It accepted that she and her Husband separated in 2006. It also accepted the new allegation of assault by her Husband during her mother’s funeral in 2012, which was only raised on the second day of the hearing. But, it found she greatly exaggerated the seriousness of the injury which she claimed was inflicted on her. It accepted her Husband had assaulted her and continued threatening to kill her and to report her adultery to the police, but found the Mother and the Father had exaggerated this part of their claims in an attempt to heighten the claimed risk to them and the Daughter. Because of the significant difference between the Mother’s and the Father’s evidence and the vagueness of their evidence on this issue, the Board did not accept her Husband had relatives who are police officers or are members of any drug gang. It accepted the Mother had a genuine and subjective fear of her Husband. 19.The Board noted that the Mother and her Husband had not lived together since 2006, had not seen each other since 2019 and had not communicated with each other since April 2022. It bore in mind the possibility of ongoing contact between them in their co-parenting of their two elder children. It also noted that apart from the new allegation of assault in 2012, her Husband had only made verbal threats and had never harmed her. As the Mother maintained contact with her Husband until April 2022, the Board took that as an indication that the Mother did not consider his threats to be a genuine risk to her. On balance, the Board was not satisfied that the Husband had any genuine intent to kill or otherwise seriously harm the Mother. It considered he had only made empty threats to cause emotional distress to her, which was what he had been doing since 2006. The Mother had been assaulted for two years during her marriage and once in 2012 after their separation. She never found it necessary to seek significant medical treatment. The Board therefore found the harm to the Mother from those assaults were at the lower end the scale of seriousness and the risk is remote or speculative. It therefore found there is not a real risk that the Mother will face any proscribed harm under any applicable grounds from her Husband if she is refouled back to the Philippines. 20.The Mother had contact with her former boyfriend. She remains in contact with his mother to keep in touch with her third child. She confirmed to the Board that other than expressing his anger upon learning of her pregnancy with the Daughter, her former boyfriend had never made any express threat to harm her or had actually harmed her. The Board therefore found there is no real risk of proscribed harm under any applicable ground to the Mother from her former boyfriend. 21.As the Husband had fathered a child with another woman, the Board considered it unlikely that he would ever follow up his threat to report the Mother’s adultery to the authorities because he was equally liable for prosecution for his own adultery. He had many opportunities to report on her, but he never did, not even after the birth of the third child. Hence, the Board came to the following conclusion in paragraph 85 of its Decision:
The meaning conveyed by the first sentence in the above quote is precisely the opposite to that conveyed by the second sentence. A fair reading of the entire paragraph in the content of the Mother’s case suggests that the word ‘not’ had been inadvertently left out as highlighted above. 22.For the above reasons, the Board came to the conclusion that there would only be a remote or speculative risk and not a real risk that the Mother will face proscribed harm under any applicable grounds from her Husband, his relatives (be they police and/or gangsters), her former boyfriend and/or the Philippine authorities, if she is refouled to the Philippines. Finding of the Board – the Father’s claim 23.The Father claims four sources of harm: relatives of Mr SV (including Mr MV), the Philippine authorities, the Husband and his relatives. The gist of his case is that SV and the two victims were killed by the Father and his party for trying to abduct his Cousin; police made enquiries but no one was arrested; but eight months later, he was threatened with death from Mr SV’s uncle, ie Mr MV. In answer to the Board’s query why, if no one was held criminally liable for the death of the two victims, would he be held liable for the death of Mr SV, his reply was that the victims were trespassers attempting to abduct his Cousin, but many people witnessed him striking the fatal blow on Mr SV. The Board found that answer unconvincing and could not reconcile with the basic principle of proportionality and use of lethal force. Subsequently, the Father abandoned his claim of fear of harm from the authorities. 24.He could not explain why nothing happened to him while he remained in Manila for around three months after the fight and why there was no direct attribution against him for the death of Mr SV until eight months after his death. The Board rejected his reliance on the 4 April Incident problematic and incredible. It was impossible that in the short time during which the two men, allegedly sent by MV, kicked down his door, his uncle was able to report the incident to the police and the police was able to arrive so quickly as to frighten the two men away. 25.The Father did not make a proper application for non-refoulement protection until five years after his arrival in Hong Kong. His explanation was that he had attempted to make a claim in 2018, but was misinformed by an acquaintance that he would be arrested if he pursued the claim which led him to abscond from the Immigration Department. His application was deemed to contain insufficient information and not processed. The Board considered his explanation unconvincing. Even if it were true, that could not explain why he did not take any steps to find out how to make a proper application during those five years until he was arrested. If he had a genuine fear for his life, the Board thought it reasonable to expect he would have done more to make a timely and effective application. The Board found him incredible and rejected his evidence that he had caused the death of Mr SV, that the 4 April Incident ever occurred, that he went to Manila in fear of harm from the family of Mr SV, that anyone had blamed him for the death of Mr SV, that Mr MV had ever threatened him and that he came to Hong Kong and overstayed in fear of threats from Mr MV. It considered the Father had fabricated these claims in an attempt to create a basis to apply for non-refoulement protection. 26.The Board accepted the Father’s evidence that the Husband had made text messages and verbal threats to kill or seriously harm him and that he did not know the Mother was married until the Husband first threat against him in 2021. It found for the same reasons as it did in assessing the Mother’s risk that the Husband had no intention to harm or seriously harm the Father and that there was no real risk of proscribed harm under any applicable grounds to the Father from the Husband and/or any of his relatives, if the Father is refouled to the Philippines. Finding of the Board – the Daughter’s claim 27.There is no evidence of any direct threat of harm by the Husband against the Daughter. It was the Mother who claims that her Husband’s anger would be extended to the Daughter as well. For the same reasons as it found in respect of the Mother’s claim, the Board found the Husband had no intention to harm the Daughter and there is no real risk of proscribed harm under any applicable grounds to the Daughter from the Husband and/or any of his relatives, be they police or gangsters, if the Daughter is refouled to the Philippines. 28.Other than expressing his wish to continue to live together as a family with the Daughter and Mother, the Father had not made any specific claim in his non-refoulement claim form (“NCF”) or record of interview that Mr MV or other relatives of Mr SV will harm the Daughter. However, at the first day of hearing before the Board, he extended his fear of Mr MV and other relatives of SV to the Daughter. As the Board had rejected the Father’s evidence on those issues, it found there is no real risk of proscribed harm under any applicable grounds to the Daughter from Mr MV or any relatives of SV, if the Daughter is refouled to the Philippines. 29.The Father and Mother are of the same ethnicity, nationality and religion. The Board noted, however, that they were not married at the time of the Daughter’s birth and specifically raised that issue with them. The Father said there was a risk to the Daughter because she is from his blood, but the Mother said the Father was overly protective as the Daughter is his first child. Other than that, they have not raised any other child specific risks on behalf of the Daughter. 30.As both the Father and Mother are citizens of the Philippines, the Board is satisfied that the Daughter is entitled to Philippine citizenship. As the Father and Mother provided only vague responses to child specific claim of their not being married at the time of the Daughter’s birth, the Board could find no other apparent child specific issues for it to have regard to on behalf of the Daughter. This is particularly so as the Daughter is entitled to Philippine citizenship and is of the same ethnicity, nationality and probably also religion. Having reminded itself of the Daughter’s vulnerability as a minor and that any harm to the Mother or the Father, may result in vicarious harm to the Daughter, if the harm would result in her losing one or both of her parents, the Board came to the conclusion that there is no real risk of proscribed harm to the Daughter under any applicable grounds because her parents were unmarried at the time of her birth or because she was born in Hong Kong. Finding of the Board – Internal relocation 31.The Board discussed the issue of internal relocation with the Father and Mother at length. It suggested that they could relocate to Cebu in Visayas which is a large population centre with economic opportunities and far away from the Husband. The Applicants argued that the Husband could locate them anywhere in the Philippines through his relatives who are members of the police or gangsters. As the Board had rejected that evidence, there is no substance in this ground of objection. They also raised arguments such as that the Husband could locate them through social media, that many people have the same family name as Mr MV, and that it would be difficult to find employment in Cebu. The Board considered such risks remote and speculative. It accepted there may be some initial difficulties, but such difficulties are not insurmountable. Having regard to their background, age and working experience, the Board found it would not be unduly harsh for them to relocate to Cebu. Finding of the Board – Conclusion 32.The Board had considered the personal circumstances of each of the Applicants and considered the claims of each of them individually and cumulatively. Applying the law applicable to the non-refoulement protection to the above finding of fact, the Board also came to the conclusion that the Applicants is not entitled to protection under of the applicable grounds under the USM. Hence, it dismissed the Applicant’s appeal. It also found internal relocation feasible. For all these reasons, it dismissed their appeal. Legal principles applicable to judicial review 33.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[2]. Grounds for judicial review 34.The Applicants had annexed a document titled ‘Grounds on which relief is sought’ in their Form 86. There are eight paragraphs in the document. Paragraphs 2 to 5 are about procedural history. Paragraph 8 is a prayer for relief. The other three paragraphs are all bare general allegations without particulars. These grounds appear to be format grounds copied from other applications which had no bearing to the facts of this application. For example, in Ground (6), the Applicants alleged that “he was not given a fair opportunity to keep forward his submissions in an oral hearing”. The fact is they had an oral hearing on 27 June and 31 July 2023. The Applicants did not attend the hearing and forewent their chance to perfect the grounds with particulars. It is impossible to follow up with these grounds. The Court could only bear these allegations in mind in its overall scrutiny of the Board’s Decision. These grounds are:
Overall scrutiny 35.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. 36.The Board assessed the Applicants’ evidence very carefully and tested it against inherent probability and common sense. It accepted most of the Mother’s evidence but rejected almost the entirety of the Father’s evidence. It considered the personal circumstances of each of the Applicants, particularly the personal background of the Daughter, and considered the claims of each of them individually and cumulatively. It considered the Daughter’s case separately from her Mother and Father and bore in mind her vulnerability as a minor. It drew the Father’s and Mother’s attention to the fact that they were unmarried at the time of birth of the Daughter and reminded them of child specific risks. It could not find any. The Mother disagreed with the Father’s concern as being overly overprotective of the Daughter. Of course, Mother never argued that her third child who is in the same position as the Daughter faced any such risks. The Board found there would only be a remote or speculative risk and not a real risk that the Applicants will face proscribed harm under any applicable grounds from the Husband, his relatives (be they police and/or gangsters), the former boyfriend and/or the Philippine authorities, if she is refouled to the Philippines. It rejected the Father’s evidence about the risk of harm from Mr MV or the relatives of Mr SV is fabrication and wholly non-existent. It found the Applicants could relocate to Cebu to avoid the remote risk of harm, if necessary. 37.Applying the law applicable to non-refoulement protection to the above finding of fact, the Board came to the conclusion that the Applicants is not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as these are finding of the law, they are absolutely correct. Insofar as these are finding of fact, they 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. 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 Applicants failed to discharge their burden of proving their fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. 38.For the above reasons, the Applicants’ leave application is refused. Dated the 11th 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 |