Bautista Precilla Norcio and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 458/2025, [2026] HKCA 1596

On Appeal From [2025] HKCFI 2541

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 458 OF 2025

(ON APPEAL FROM HCAL NO 1221 OF 2021)

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BETWEEN

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JUDGMENT

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

1.This is the Applicants’ appeal against the order of Deputy High Court Judge To (“the Judge”) dated 17 June 2025 (“the Order”) refusing to grant leave to the Applicants to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 25 June 2021, whereby the Board dismissed the 2^nd Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 21 September 2020.

BRIEF BACKGROUND

2.The 1^st and 2^nd Applicants are mother and daughter, and are nationals of the Philippines.  The 1^st Applicant is a party to the present proceedings merely as the representative of the 2^nd Applicant.

3.The 1^st Applicant last entered Hong Kong to work as a foreign domestic helper on 16 October 2014.  After the termination of her employment contract, she did not depart and had overstayed since 17 October 2017.  In the meantime, on 16 October 2016, she gave birth to her first daughter (“the Elder Daughter”) out of wedlock in Hong Kong[1]. On 24 October 2017, the 1^st Applicant surrendered herself together with the Elder Daughter to the Immigration Department.  On 7 November 2017, the 1^st Applicant lodged non-refoulement claims for herself and on behalf of the Elder Daughter[2], which were rejected by the Director on 20 June 2018.  Their subsequent appeal against the Director’s decision was dismissed by the Board on 4 January 2019[3].

4.On 18 February 2020, the 1^st Applicant gave birth to the 2^nd Applicant out of wedlock in Hong Kong[4]. On 21 April 2020, the 1^st Applicant lodged a non-refoulement claim on behalf of the 2^nd Applicant[5].

5.Both the 1^st Applicant’s claim and the 2^nd Applicants’ claims were made on the basis that, if refouled, they would be harmed or killed by the 1^st Applicant’s husband (Emmanuel Bautista) in the Philippines because the 1^st Applicant gave birth to the Elder Daughter and the 2^nd Applicant with another man in Hong Kong.  Details of the claims have been summarised by the Judge at §§4-8 of the CALL-1 Form.

6.By a Notice of Decision dated 21 September 2020 (“the Director’s Decision”), the Director dismissed the 2^nd Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[6], persecution risk[7], BOR 3 risk[8], and BOR 2 risk[9].

7.The 1^st Applicant on behalf of the 2^nd Applicant appealed the Director’s Decision to the Board.  On 25 June 2021, the Board dismissed the appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at §§9-11 of the CALL-1 Form, as follows:

“[9] The Board considered 1^st Applicant evasive when she testified before the Board on 30 November 2020. She took time to consider before answering the Board’s question.  She was not frank with details and timing of the threats throughout the screening process including the completion of the [non-refoulement claim forms] and attending the screening interview.  She admitted she was aware of the availability of non-refoulement protection in Hong Kong, but could not explain why she did not seek assistance until a year after she had been threatened by her husband.  She claimed her husband threatened her through messages in Facebook, but could not produce any message claiming that she had deleted them because she did not want them to be seen by those living with her.  While accepting that she might not be aware of the evidential value of those messages before she applied for protection, the Board could not accept that she would have erased them when she should have known of their evidential value after the screening interview in October 2018.

[10] At the hearing on 24 May 2021, the Board reminded the 1^st Applicant to give more information about the 2^nd Applicant’s specific risk, if any.  Despite that, she gave no further evidence or any evidence relating to the 2^nd Applicant’s child-specific risk of harm or her child’s appreciation of factors that may amount to persecution.

[11]  In conclusion, the Board found the Applicants’ case vague and unbelievable.  It considered the nature of the inconsistencies and suspicious allegations are sufficiently serious as to undermine the reliability of her evidence.  It had reservation about the allegation that the 1^st Applicant’s husband was not happy about her affairs and her giving birth to her two daughters.  Even if he was not happy, the Board considered it could not have reasonably given rise to the alleged threats to kill the 1^st Applicant and her two daughters.  It could find no evidence of any child-specific risk of harm to the 2^nd Applicant.  The Board considered the 1^st Applicant’s fear for the 2^nd Applicant is based on her bare assertion instead of real personal experience.  It considered the underlying basis of the Applicants’ claim is a personal and private dispute without involving the state.  There was no claim that the police or the state would not intervene against the husband’s threat.  It did not consider the 1^st Applicant’s husband so powerful as could locate her and her daughters anywhere in the Philippines.  The 1^st Applicant resiled from that position and admitted that her husband did not have influence all over the Philippines.  Applying the law applicable to non-refoulement protection, the Board found the Applicants had failed to establish the factual basis to support the 2^nd Applicant’s claim for protection under the [unified screening mechanism (‘USM’)].  Hence, it dismissed the Applicants’ appeal.”

THE JUDGE’S DECISION

8.On 31 August 2021, the Applicants filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground for seeking relief was given in the Form 86.  In the 1^st Applicant’s supporting affirmation of the same date, she complained generally that the Board disregarded their dangerous situation.

9.On 17 June 2025, the Judge refused to grant leave to the Applicants to apply for judicial review.  The Judge held that the 1^st Applicant was only a nominal applicant in the leave application, and was not entitled to any relief.  The Judge further considered that there was no arguable or specific ground of judicial review raised by the Applicants to challenge the Board’s Decision.  At §§14-16 of the CALL-1 Form, the Judge gave his overall conclusion as follows:

“[14] 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 very high standard of fairness.  The claims of both the 1^st and 2^nd Applicants are rested on the same factual basis, ie the 1^st Applicant’s extra-marital relationship and birth of the 2^nd Applicant out of wedlock and that both of them are facing the same harm and risk of harm from the 1^st Applicant’s husband.  The 2^nd Applicant’s claim is hinged on the 1^st Applicant’s.  Her claim stands or falls together with the 1^st Applicant’s. Despite the 1^st Applicant’s own claim had been finally determined and dismissed, the Board reconsidered her evidence afresh, although for the same reasons rejected it as incredible and unreliable.

[15] The Court is satisfied that the Board had analysed the evidence carefully, tested it against common sense, inherent probability and against authoritative and credible [country of origin information (‘COI’)].  It seemingly accepted that the 1^st Applicant’s husband had learned about the news of her affairs and the birth of her elder daughter; but had reservation about the allegation that [the husband] was not happy about her affairs and the birth of her two daughters.  It found even if he was not happy, that could not have reasonably given rise to the alleged threats to kill the 1^st Applicant and her two daughters.  These are finding of facts solely for the Board.  The Board gave full reasons for its finding.  The Board was also mindful of the possibility that the 2^nd Applicant might have child-specific risks.  It reminded the 1^st Applicant of such possibility and invited her to provide information in support of such risks, but she did not give any.  It therefore found there was no evidence that the 2^nd Applicant would face any child-specific risk, if returned to the Philippines.

[16]  It was on that basis that the Board found the Applicants had failed to establish the factual basis to support their claim for non-refoulement protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  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 Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.”

THIS APPEAL

10.In the Applicants’ Notice of Appeal filed on 30 June 2025, the Applicants merely state that they would like to “reject and review” the Judge’s decision, and complain that the Judge disregarded their dangerous situation.

11.On 30 June 2025, the Applicants consented to their appeal being disposed of on paper by the Court without an oral hearing.

12.In their written submissions lodged on 24 March 2026, the Applicants contend that their claims ought to be considered with reference to BOR 2 risk because they face a foreseeable risk of harm from the 1^st Applicant’s husband in the Philippines, which is a conservative country that does not allow divorce[10].  They explain that the 1^st Applicant’s arguments and responses were found to be evasive because she had difficulties in recalling events that happened a long time ago, and she was not a legal professional and was testifying through an interpreter when she was scared and anxious[11].  They also allege that internal relocation is not a viable option open to them, and state protection will not be available to them[12].  

DISCUSSION

13.As rightly held by the Judge, the 1^st Applicant is only a nominal party in this case.  She is plainly not entitled to any relief in her own right.

14.Insofar as the 2^nd Applicant is concerned, she 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.

15.The 2^nd Applicant’s claim in the present case was premised fundamentally on the factual basis relied upon by the 1^st Applicant for her own claim, namely, a risk of harm from the 1^st Applicant’s husband in the Philippines to both herself and her two children born in Hong Kong.  The 2^nd Applicant was legally represented before the Board, and the 1^st Applicant gave oral evidence at the hearing before the Board on behalf of the 2^nd Applicant.  The Board, after considering the evidence from the 1^st Applicant, found that the 1^st Applicant was evasive to the questions put to her, and she was not a reliable witness (see §33 of the Board’s Decision).  The Board held that the 1^st Applicant was not telling the truth and there was no reasonable ground to believe that the 1^st Applicant or her children would face any real risk of harm from the 1^st Applicant’s husband upon refoulement (see §39 of the Board’s Decision).  Once the 1^st Applicant’s evidence was rejected, there was no factual basis which could support the 2^nd Applicant’s claim which was considered by the Board with reference to BOR 2 risk and other applicable risks. 

16.The allegation that the Philippines is a country that does not allow divorce is a bare assertion without any evidence in support.  In any event, the Board considered the relevant COI and concluded that state protection would be available to both the 1^st and 2^nd Applicants in the Philippines against, amongst other matters, domestic violence (see §§45-48 of the Board’s Decision).  The Board also considered that the question of internal relocation did not arise in the present case (see §62 of the Board’s Decision).  It is well-established that the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are matters 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.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.  

17.The Judge was satisfied that there was no evidence to show the 2^nd Applicant would face any child specific risk upon refoulement.  No child specific issue has been raised in this appeal, and we are unable to see any such issue arising on the materials before us.

18.In all, the Applicants’ appeal has no merit, and is dismissed.

19.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 2^nd Applicant’s appeal a nullity.

The 1^st and 2^nd Applicants, acting in person