Ballesteros Shirley Maglalang Acting As the Next Friend of Bermudez Mary Kezia Maglalang v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1287/2023

[2026] HKCFI 5633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1287 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

1.  Leave to apply for Judicial Review be refused; and

2.  Non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings be treated as a mere irregularity without rendering the Applicant’s application a nullity.

Observations for the Applicant:

THE APPLICATION

1.The 1^st named is the mother (“the mother”) acting as the next friend of the 2^nd named applicant, her daughter born in Hong Kong on 6 January 2013 (“the daughter”). The mother’s non-refoulement claim had failed. See HCAL 1194 of 2019. The Court of Appeal had dismissed her appeal and her Notice of Motion for leave to appeal to the Court of Final Appeal.

2.Form 86 is amended to the mother acting as the next friend of the daughter accordingly. The applications mentioned below were made by the mother as the guardian or the next friend of the daughter.

3.The applicant applies for leave to apply for judicial review of the Decision dated 14 July 2023 of the Torture Claims Appeal Board (“the Board’s Decision”). Her application relies upon the facts of the mother’s claim.

4.The mother appeared for the daughter before the Court on 21 September 2026.

The applicant

5.The applicant is a national of the Philippines, adopting the mother’s nationality.

6.The applicant lodged a non-refoulement claim, on the basis that, if refouled, the mother and she will be harmed or killed by her mother’s husband because her mother committed adultery, giving birth to her.

7.Details of the facts are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001287_2023_files/the_Board's_Decision.pdf

The Director’s Decision

8.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

9.By way of the Notice of Decision dated 9 June 2022 (“Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 14 July 2023, the Board conducted an oral hearing for the appeal. The daughter and the Director were legally represented. The mother had given evidence and answered the Board’s questions.

11.Having considered the evidence, the Board found that there will be real risk of harm if the mother returns to the Philippines with the daughter [23]-[24]; however, internal relocation is viable if she returns to the Philippines with her mother [36]; that reasonable state protection will be available [41]; that her claim on all the applicable risks failed.

12.For the reasons above, the Board dismissed the appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

13.The daughter filed Form 86 on 26 July 2023 for leave to apply for judicial review of the Board’s Decision.

14.In support of the application, the mother said she did not agree with the Board. She raised no specific reason to challenge the Board’s Decision. She has attached a copy of the Board’s Decision to her affidavit.

DISCUSSION

15.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).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the mother confirmed that she had given full instructions about her daughter to the duty lawyer, who had made submissions to the Board; and she has no further child specific issue to be considered by the Court.

17.It is apparent that the applicant was not legally represented before the Board. The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971 held that in such circumstances, it is incumbent upon the Board to see if there were any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation, and to have separate consideration of the child specific issues as the minor is more venerable to the applicable risks than the parent.

18.The Court of Appeal in Re: Jasvir Singh & Ors [2021] HKCA 53 further held:

“33. … if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor specific non refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”

19.This is a separate assessment of the daughter’s non-refoulement claim. She was legally represented. The mother confirmed that the duty lawyer had submitted the daughter’s case to the Board. The Board had considered the daughter’s case.

20.The Board’s Decision bears no error in law or procedural irregularities. The decisions of the Board do not appear to be irrational. Therefore, I consider that the daughter does not have any reasonable prospect of success in the intended judicial review of the Board’s Decision.

21.The daughter therefore fails to show that there is any realistic prospect of success in the proposed judicial review.

DISPOSITION

22.I refuse to grant leave to the daughter to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

23.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the daughter’s application a nullity.

Dated the 7^th day of October 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