Palacio Christopher Balabag and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 735/2026

[2026] HKCFI 5634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 735 of 2026

BETWEEN

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 1st and 2nd Applicants in open court, and the 3rd Applicant being absent;

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

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

2.  treat non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings as a mere irregularity without rendering the 3^rd Applicant’s application a nullity.

Observations for the Applicant:

THE APPLICATION

1.The applicants are a family. The 1^st applicant is the father (“the father”); the 2^nd applicant is the mother (“the mother”); and the 3^rd appellant is the daughter (“the daughter”), a minor, born on 28 March 2011 in the Philippines. They are collectively called (“the applicants”).

2.The applicants applied to the Director of Immigration (“the Director”) for non‑refoulement protection. The Director refused their claim, whereupon they appealed to the Torture Claims Appeal Board (“the Board”). The Board dismissed their appeal.

3.The applicants applied to the Court of First Instance for leave to apply for judicial review of the Board’s decisions.

4.By Consent Order dated 14 November 2025, the Board’s decisions were set aside and the matter was remitted to the Board (differently constituted) for re‑assessment.

5.By Decision dated 2 April 2026 (“the Board’s Decision”), the Board dismissed their appeal.

6.The applicants jointly apply for leave to apply for judicial review of the Board’s Decision. Their joint application relies on the facts as claimed by the parents.

7.The parents appeared before the Court on 21 September 2026. The daughter was at school. She was represented by her parents.

8.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicants

9.The applicants are nationals of the Philippines.

10.The applicants lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed or killed by a person called JG over a loan and land dispute. JG had borrowed money from the father with his land secured. He did not repay the loan. The father realized the security and sold the land. JG demanded return of his land from the father and threatened to kill the father if he failed to do so. JG had raped the mother. The family came to Hong Kong to avoid JG.

11.Details of the facts are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL000735_2026_files/the_Board's_Decision.pdf

The Director’s Decisions

12.The Director considered the applicants’ claims 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”).

13.By way of the Director’s Decisions respectively dated 14 December 2017 for the parents and 25 June 2018 for the daughter (“the Director’s Decisions”), the Director assessed the applicants’ claims on all applicable grounds and dismissed their claims on all applicable risks because they were unsubstantiated.

The Board’s Decision

14.On 23 March 2026, the Board conducted a re-hearing for their appeal. The parents had given evidence and answered the Board’s questions.

15.Having considered the evidence, the Board made the findings below, bearing in mind the guidelines laid down by the Court of Appeal in Fabio Timogan & Others v Ruth [2020] HKCA 971.

(1)  The Board accepted the stories of the father and the mother. [83] & [84]

(2)  The Board did not accept their allegations that the state will not take actions to protect them if they report the case to the police. [85]

(3)  The parents’ problem relates to land dispute with JG, which is not one of the Persecution risks reasons. [91]

(4)  The country-of-origin information shows that reasonable state protection and social welfare will be available to the applicants if they return to the Philippines. [150]

(5)  Internal relocation is available to the father and the mother. [151]

(6)  The father and the mother failed to establish their claim under any of the applicable risks.

(7)  Separately assessed, the daughter failed to establish her claim under any of the applicable risks.

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

Application for leave to apply for judicial review

17.The applicants filed Form 86 on 14 April 2026 for leave to apply for judicial review of the Board’s Decision.

18.In support of their application, the parents did not raise any specific reason to challenge the Board’s Decision in their affidavit. They have attached a copy of the Board’s Decision to their affidavit.

DISCUSSION

19.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 applicants’ 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).

20.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the parents confirmed that they had given evidence before the Board. They were unable to say whether the Board was wrong in its decisions.

21.I asked the parents if there were any child specific issues, which were not put to the Board for consideration because they were not legally represented. The mother said that she had told the Board all about her daughter and there was nothing she would add.

22.It is apparent that the applicants were 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 for the minors, and to have separate consideration of the child specific issues as the minors are more venerable to the applicable risks than the parents.

23.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 .”

24.The Board had considered the child’s situations separately.

25.The Court of Appeal in Re Penol, Sally BArsolaso & Iiggs Paul Derrick [2024] HKCA 790, Hon Chu VP and Barma JA, held:

“27. Importantly, both before the Board and in the applications before the Judge and in the present application, the 1st applicant has not identified any other risks of harm that the 2^nd applicant [the child] may separately face in the Philippines.

28. On the papers available to this Court, we also do not see any material that may give rise to a concern of potential non-refoulement grounds relating specifically to the 2^nd applicant but which had not been advanced to the Board or considered by it because of the lack of legal representation on his behalf before the Board.

29. In the premises, we do not find the 2^nd applicant’s intended judicial review reasonably arguable or any basis to disturb the Judge’s refusal of leave to apply for judicial review.”

26.The mother confirmed that she had submitted all information about her daughter to the Board for its consideration.

27.In my view, the Board’s Decision has no error in law or procedural irregularity, and the decisions are not irrational. Therefore, I consider that the applicants do not have any reasonable prospect of success in their intended judicial review of the Board’s Decision.

DISPOSITION

28.I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

29.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 14^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