Policarpio Glecy Bagalay and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 277/2026 [2026] HKCFI 5377 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 277 of 2026 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 28 January 2026 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 28 October 2025 (the “Second Decision”) dismissing the 2nd Applicant’s appeals against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 9 June 2025 refusing the 2nd Applicant’s application for non-refoulement protection (the “Notice”). The 2nd Applicant is the fifth and the youngest child of the 1st Applicant in HCAL 1550/2023 (the “Mother”), the 3rd Applicant (the “Father”) and the youngest sister of the 2nd Applicant in that application (the “Elder Sister” in this application). 2.The Applicants are Filipino nationals. The 1st Applicant is a nominal party in this application. She is the mother of the 2nd Applicant and represents the 2nd Applicant, now aged two. She had raised her own non-refoulement claim with other members of her family in what is described as the ‘first set of proceedings’ in paragraph 5 below. She 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 also 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, 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 2nd Applicant thereafter. 3.A hearing on 12 August 2026 was scheduled and notice of hearing was sent to Applicants by post on 6 July 2026 to their address as stated in the Form 86. The notice has not been returned in the course of mail. The Mother had never informed the court of any change of address since filing of her Form 86 earlier this year. There is nothing to suggest that she had not received the notice of hearing. Attempts were made on the afternoon of 11 August 2026 to contact the Mother by telephone through the two telephone numbers provided by the Mother and the Father 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 2nd Applicant and her Mother and that the Court had tried its best endeavour to bring the hearing to their notice. They did not appear at the hearing. 4.Having considered the applicable legal principles, the Decision, the papers, the leave application, the issues raised, the fact that 2nd Applicant 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 her leave application may be justly determined without prejudicing her 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 5.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 protection (the “first set of proceedings”). She then developed a relation with the Father who is a Filipino non-refoulement claimant and gave birth to the Elder Sister in January 2022. Their claims were assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”) and rejected by the Director. They appealed. Their appeal was dismissed by the Board’s First Decision. They applied for leave to apply for judicial review of the First Decision in HCAL 1550/2023. 6.A year later, the Mother gave birth to the 2nd Applicant. She also lodged a non‑refoulement claim on behalf of the 2nd Applicant (the “second set of proceedings”). The claim was was also assessed on all four applicable grounds under the USM and rejected by the Director’s decision in the Notice. The 2nd Applicant’s appeal against the Director’s decision was dismissed by the Second Decision by a differently constituted board. They now seek leave to judicially review the Second Decision. 7.The factual background leading to the present application, the basis of the Applicant’s claim, the arguments she 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 2nd Applicant’s claims 8.The Mother, on behalf of the 2nd Applicant, relied on and adopted the non-refoulement claim form (“NCF”) prepared by her and her record of screening interview (“ROI”) in the two sets of proceedings. She did not mention the Father’s NCF or his grounds of claim. Impliedly, she accepted that the Father’s claim is of no relevance to the 2nd Applicant’s claim. 9.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 fathered another child with another woman. 10.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 in November 2015. 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 informed her parents and the mother of her former boyfriend that she was unable to remit money to them. 11.In 2019, the Mother started a relationship with the Father and gave birth to the Elder Sister in January 2022. Upon learning that the Mother had given birth to the Elder Sister with yet another man, the Husband went to the Mother’s maternal home a few times and delivered threats against the Mother. After her eldest daughter’s eighteenth birthday party in April 2022, the Husband threw a wine glass on the floor and renewed his intention to kill the Mother and the Elder Sister if they return to the Philippines. 12.In July 2024, the Mother gave birth to the 2nd Applicant. She claims fear of harm to herself and the 2nd Applicant from her Husband and his relatives who are members of the police and/or violent gangs for giving birth to the 2nd Applicant with the Father; from her former boyfriend for giving birth to the Elder Sister and the 2nd Applicant with the Father; and from the Philippine authorities for committing adultery. She claims the 2nd Applicant could not access internal relocation because she does not have the means to and she cannot access state protection because of the Husband’s relatives in the police and violent gangs. Country of Origin Information (“COI”) 13.The Board researched extensively into country of origin information about the Philippines (“COI”). It found, despite some shortcomings, the government has taken practical steps to improve its effectiveness and combat corruption in the government and in the police. There are avenues for complaints against public officials for corruption, abuse of power and malpractice, such as the Ombudsman and the Presidential Anti-Corruption Commission. The government has done much to improve the position of women and the protection of women and children. The law criminalizes physical, sexual and psychological harm or abuse to women and children committed by spouses, partners or parents. The Republic Act No. 9262 defines violence against women and their children, provides for protective measures for victims including protective orders and prescribes penalty. There are governmental and non-governmental organisations to protect and safeguard human rights of women and children. The Philippine Commission on Women is a recognised nationally and globally premier policy-making and oversight agency on gender equality and women empowerment. For children, there are legislations providing free and compulsory education for minors through to the age of eighteen and the Presidential Decree No 603 which guarantees all children shall be entitled to the rights set forth without distinction as to legitimacy or illegitimacy, sex, social status, religion, political antecedents, and other factors. It guarantees that every child the right to the care, assistance, and protection of the state, particularly when his parents or guardians fail or are unable to provide him with his fundamental needs for growth, development and improvement. Republic Act 7610 protects children against abuse, exploitation and discrimination. The Department Justice implements the child protection program. The UNICEF also partners with various stakeholders in the Philippines to establish a more robust, responsible and sustainable child protection in the national and sub-national levels. 14.The Board found from the Philippine Statistics Authority report issued on 27 January 2021 that 54.8% of the total registered live births in the Philippines in 2019 were born out of wedlock. In other words, the majority of the children born in that year are illegitimate. Hence, it found that children born out of wedlock is not uncommon in the Philippines. 15.On the basis of the COI, the Board found that the Philippine government has implemented measures to provide protection to children without distinction as to their legitimacy or illegitimacy. The rights of children are protected by the law. It found no evidence that the government has failed to exercise its due diligence to protect the 2nd Applicant and her Mother. It was satisfied that reasonable state protection is available to the 2nd Applicant and her Mother and there is nothing to indicate that, if returned to the Philippines, they would not be afforded the requisite level of protection from the government. Finding of the Board 16.The Board assessed the Mother’s and the 2nd Applicant’s claims on the basis of the case as asserted by the Mother. It accepted the Husband had threatened to kill the Mother and to report her adultery to the authorities. It accepted her former boyfriend had called her a few times and blamed her for losing her job and had a new relationship in Hong Kong, but had never threatened to kill her. It found neither the Husband nor her former boyfriend had any intention to kill the Mother. The Mother does not know if Husband had reported her adultery to the authorities and does not know if he is even aware of the existence of the 2nd Applicant. The Board found neither the Husband nor the former boyfriend is aware of the 2nd Applicant’s existence at all. 17.The Board found the dispute between the Mother and her Husband is a private dispute in which the Philippine government is not involved. It found the pain and ill-treatment suffered by the Mother was not severe, did not attain the minimum level of severity and fell outside the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance. The ill-treatment was not inflicted on account of any of the reasons enumerated in the 1951 Convention relating to the status of Refugees and its 1967 Protocol. There was nothing to suggest that the feared treatment was inflicted by, or with the consent or acquiescence of a government official or other people acting in an official capacity. It found neither the Husband nor the former boyfriend had any intention to harm the Mother. It found no evidence that the Husband would be able to mobilise government resources to take revenge on the Mother and no evidence that he had connection with any triad society or government authorities. It found the authorities had no adverse interest in the 2nd Applicant and no indication that the government authorities would allow the Husband or the former boyfriend to harm the 2nd Applicant. The Board therefore came to the conclusion that the risk of harm that the 2nd Applicant would face on her refoulement to the Philippines would be extremely low and remote and that her fears are not well-founded. 18.It was the Mother’s choice not to seek protection from the police. On the basis of authoritative and credible COI, the Board was satisfied, despite corruption and other shortcomings in the Philippine government and the police that reasonable state protection would be available to the 2nd Applicant and her Mother and there is nothing to indicate that they would not be afforded the requisite level of protection from the government on their return to the Philippines. The Board also found the Mother and the 2nd Applicant can relocate to other cities in the Philippines to avoid the risk of harm from the Husband or the former boyfriend. Given the background, age and working experience of the Mother, the Board found it would not be unduly harsh for them to so relocate to cities such as Davao or Zamboanga. 19.The Father and Mother are of the same ethnicity, nationality and religion. Except for the issue of illegitimacy, prima facie, neither the 2nd Applicant nor the Mother would be at risk of discrimination, on their return to the Philippines. The Board had researched extensively into the COI and found children’s rights are protected and there are many governmental and non-governmental organisations implementing child protection program to protect children from all forms of violence, abuse, exploitation and discrimination and to establish a more robust, responsible and sustainable child protection system in the national and sub-national levels. As the 2nd Applicant’s parents are Philippine nationals, the 2nd Applicant is entitled to Philippine citizenship and all rights of the citizens, despite his illegitimacy. Furthermore, as the COI shows, illegitimate children born and living in the Philippines is not uncommon. The number of illegitimate live births actually exceeded the number of legitimate birth by almost ten percent in 2019. While accepting that there may be a certain degree of discrimination in the society, the Board found the 2nd Applicant can still enjoy her fundamental rights under Philippine law and the risk of proscribed harm which she would face would be extremely low, particularly as both the Husband and the former boyfriend have no knowledge of her existence at all. 20.For the above reasons, the Board came to the conclusion that there would only be a very remote risk and not a real one that the 2nd Applicant would face any proscribed harm under any applicable grounds from the Mother’s Husband, his relatives and her former boyfriend and/or the Philippine authorities, if she is refouled to the Philippines. Legal principles applicable to judicial review 21.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 22.The Mother had not advanced any grounds of application on behalf of the 2nd Applicant in the Form 86. In the absence of any particularized grounds of application, the Court could only focus on the usual grounds of application such as errors of law, procedural unfairness and irrationality in the Decision, bearing in mind the possibility that there may be child specific risks which the Mother may not have been able to advance on behalf of the 2nd Applicant due to lack of legal representation. Overall scrutiny 23.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. 24.The Board assessed the Applicants’ evidence very carefully and tested it against inherent probability and common sense. It accepted the entirety of the Mother’s evidence and assessed the 2nd Applicant’s claim on the basis of the Mother’s evidence. It researched extensively into the COI. It made some further finding of fact on the basis of the Mother’s evidence and the COI. Applying the law applicable to non-refoulement protection to the above finding of fact, the Board came to the conclusion that the 2nd Applicant 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. 25.The Board did not seem to have made any finding on the Mother’s claim. It did not expressly dismiss the Mother’s claim as it had been rejected by a differently constituted Board in the first set of proceedings. An objective reading of the Decision suggests that the Board accepted that the Mother had genuine fear of harm from the Husband but had no genuine risk of any of the proscribed harm from him or his relatives. The Board had also reminded itself of the landmark decision in Fabio and Others[3] that it had to consider the claim of the 2nd Applicant separately. This Court is satisfied that the Board had done so. That probably explained why the Board stayed clear of mentioning the fact that the Mother’s claim had failed. 26.The Board was aware that the Duty Lawyer declined to represent the 2nd Applicant. It reminded itself of the decision in Re Siti Naisah Tasya Stephanie[4] and the high standard of fairness which it is obliged to discharge in processing the 2nd Applicant’s appeal. It looked for child specific risks which the Mother may not have been able to advance on behalf of the 2nd Applicant due to lack of legal representation. It researched extensively into the COI about child protection in the Philippines and the risk of discrimination against children born out of wedlock, despite it had not been raised by the Mother. It found the risk is very low. Perhaps, the Mother realised that there is no such risk at all from her own experience as her third child was also born out of wedlock. 27.On a critical and anxious scrutiny of the Board’s Decision, this 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. 28.For the above reasons, the Applicants’ leave application is refused. Dated the 24th 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
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