Agsalog Baby Jean Habab and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1821/2025 [2026] HKCFI 5233 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1821 of 2025 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 K.W. Lung:
Observations for the Applicant: THE APPLICATION 1.The 1st applicant is the mother (“the mother”) acting for herself and as the next friend of the 2nd applicant, her son, born on 9 March 2022 (“the son”). The mother gave birth to the son in Hong Kong. They are illegal immigrants. 2.The mother first lodged her non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected her claim by Notice of Decision dated 8 March 2022 (“the Director’s Decision on the mother’s claim”). She appealed to the Torture Claims Appeal Board (“the Board”). By Decision dated 21 August 2023 (“the Board’s Decision on the mother’s claim”), the Board dismissed her appeal. 3.The mother gave birth to the son on 9 March 2022. Acting for the son, the mother lodged non-refoulement claim for the son to the Director, relying on the same facts of her claim. By Notice of Decision dated 11 January 2023 (“the Director’s Decision on the son’s claim”), the Director refused the son’s claim. 4.Acting for the son, the mother appealed to the Board against the Director’s Decision on the son’s claim. By Notice of Decision dated 11 January 2023 (“the Director’s Decision on the son’s claim”), the Director refused the son’s claim. The mother appealed to the Board. By Decision dated 22 August 2023 (“the Board’s Decision on the son’s claim”), the Board dismissed the son’s appeal. 5.In Form 86, the mother had only applied for leave for judicial review of the Board’s Decision on the son’s claim, without making the same application for her claim. As the son’s claim relies on the mother’s claim, the son’s application cannot stand alone without the mother’s claim to be determined too. 6.Form 86 should be amended accordingly by adding the Board’s Decision on the mother’s claim in respect of which relief is sought 7.The mother and the son jointly apply for leave to apply for judicial review of the Board’s Decision on the mother’s claim and the Board’s Decision on the son’s claim, collectively called (“the Board’s Decisions”) 8.The mother did not ask for a hearing. The applicants 9.The mother and the son are nationals of the Philippines. The mother’s claim 10.The mother lodged a non-refoulement claim with the Director, on the basis that, if refouled, she will be harmed or killed by her father’s creditor as she was the guarantor of her father’s loan. The Director’s Decision on the mother’s claim 11.The Director considered the mother’s claim in relation to the following applicable risks:
12.By way of the Director’s Decision on the mother’s claim, the Director dismissed the mother’s claim on all applicable risks because it was unsubstantiated. Details of the facts are set out in the Board’s Decision on the mother’s claim. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001821_2025_files/1st_Board's_Decision.pdf The Board’s Decision on the mother’s claim 13.The mother appealed to the Board. On 5 December 2022, the Board conducted an oral hearing for the appeal. The mother had given evidence and answered the Board’s questions. 14.Having considered the mother’s evidence, the Board found that there was no clear evidence that she has a real and genuine fear that her father’s creditor will harm or kill her if she returns to the Philippines [74]; that she does not want to return to the Philippines is not because she is in fear for her safety, but rather because she does not want to repay her father’s debt [74]; that she failed to make out any applicable ground in support of her claim [89]. 15.For the above reasons, the Board’s dismissed her appeal and confirmed the Director’s Decision on the mother’s claim. The son’s claim 16.Acting as the guardian of the son, the mother lodged a non-refoulement claim with the Director on the above applicable risks, relying on the facts of her claim as the son will be harmed or killed by her creditor. The Director refused the son’s claim. On behalf of the son, the mother appealed to the Board and attended a hearing before the Board. She had answered questions from the Board. Details of the facts are set out in the Board’s Decision on the son’s claim. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001821_2025_files/2nd_Board's_Decision.pdf 17.Having considered the evidence, bearing in mind of the decisions of the Court of Appeal in Fabio Arlyn Timogan & Ors v Evan Ruth Esq. Adjudicator of the Torture Claims Petition Office & Anor [2020] HKCA 971, the Board made the findings below.
18.For the reasons above, the Board dismissed the son’s appeal and confirmed the Director’s Decision on the son’s claim. Application for leave to apply for judicial review 19.The applicants filed Form 86 on 15 August 2025 for leave to apply for judicial review of the Board’s Decisions. 20.In support of their application, the mother did not raise any specific ground to challenge the Board’s Decisions. She has attached a copy of the Board’s Decisions to her affidavit. DISCUSSION 21.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1). 22.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. The mother has raised no ground to challenge the Board’s Decision on the mother’s claim. Nor did the mother raise any reason to challenge the Board’s Decision on the son’s claim. The Board had taken into consideration of the guidelines laid down by the Court of Appeal in Fabio’s case for assessment of the son’s claim. I cannot see any other non-refoulement issues relating to the son that had not been considered by the Board because of lack of legal representation before the Board. 23.In my view, the Board’s Decisions bear no error in law, or were reached through procedural unfairness, or are irrational. 24.The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review. DISPOSITION 25.I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decisions. Accordingly, I dismiss their application. 26.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the son’s application a nullity. Dated the 30th 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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