ABAD MARIA LAILANI BILAN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2723/2019

[2025] HKCFI 4337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2723 of 2019

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 the 1st and 2nd Applicants being absent in open court;

1.  The Form 86 be amended by making the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office the proposed respondent;

2.  Extension of time to file the application to apply for Judicial Review be refused; and

3.  Leave to apply for Judicial Review be refused.

Observations for the Applicants:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 17 September 2019 for leave to apply for judicial review (the “leave application”) of a decision dated 11 February 2019. They did not identify the decision maker. In their supporting affidavit, they enclosed a copy of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) bearing that date (the “Decision”) dismissing their appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 18 August 2017 (the “Notice”), refusing their non-refoulement application. It is obvious that they are seeking to apply for judicial review of that Decision of the Board. Hence, on its own motion, the Court amended their Form 86 by naming the Board as the proposed respondent and making its Decision the decision in respect of which relief is sought.

2.  The leave application was filed seven months after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was lodged four months out of time. Extension of time to file the leave application is required.

3.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed with the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[2], per Litton PJ.

4.  Despite clear warning in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant provided neither. The delay in this case is not so very substantial that leave may be refused on this ground alone without considering merits of the substantive application. Thus, instead of adjourning the hearing for the Applicant to explain his reasons for delay, the Court considered it more expedient to assume he has some explanation for the delay and consider merits of the substantive application, which would dispose of both the extension of time issue and the substantive leave application.

5.  The Applicants had requested an oral hearing. A hearing was scheduled for them. On 13 August 2025, two notice of hearing were sent to the Applicants separately by post to their latest address as updated by them in April 2025. They have not been returned through the post. There is nothing to suggest that they had not received the notice or had moved. On 29 August and 1 September 2025, a court staff had attempted to contact them on the telephone number obtained from the Immigration Department with a view to remind them of the hearing, but the calls were not answered. They did not appear at the hearing. The Court was satisfied that the notice of hearing had been duly served on the Applicants and the Court had tried its best endeavor to bring the hearing to their notice. Having considered the nature of the application and issues raised, the Decision, the papers and all the circumstances, the Court considered their leave application may be justly determined on paper without an oral hearing and proceeded to make a determination.

6.  The Applicants are nationals of the Republic of the Philippines. The 1^st Applicant is the mother of the 2^nd Applicant. They had previously lodged a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 2015 (the “Torture Claim”). Their Torture Claim had been refused and was finally disposed of. Their non-refoulement claim lodged in 2015 was assessed by the Director under the remaining three applicable grounds under the Unified Screening Mechanism (the “USM”), namely: BOR 2 Risk[3]; BOR 3 Risk[4]; and Persecution Risk[5] grounds and rejected. His appeal was dismissed by the Board’s Decision. The Applicants now seek to review that Decision.

7.  Their personal background, the factual background leading to the present application, the basis of their claim and the arguments they 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 [6] for reference. In gist, the 1^st Applicant claims that if returned to the Philippines, they will both be harmed or killed by her husband because the relationship between her and her husband’s family turned bad and she gave birth to the 2^nd Applicant with another man in Hong Kong. She is also afraid that her nephew’s ex‑girlfriend and her father would do everything to bring her back to the Philippines so that she could be brought before her husband because the 1^st Applicant had spoken ill of her and caused her to lose her employment in Hong Kong.

8.  The Board assessed the Applicants’ claim on the basis of the factual case as asserted by the 1^st Applicant. It accepted that her husband and her mother-in-law treated her badly after her nephew caused serious injuries to her husband’s head in a fight. It accepted her husband was furious about her complaining against him to the Barangay Chief for possession of a gun and then he stabbed a pillow with a knife to vent his anger. It accepted that her husband had pointed a gun at her head and then slapped her face. It also accepted that her husband threatened through her parents to kill her when he learned she had extra-marital affair and had given birth to the 2^nd Applicant. Otherwise, her husband had not done anything to harm her. The Board found her husband is not the kind of person who would easily kill. At the most, he would vent his anger by uttering threats. The 1^st Applicant had never been seriously injured by her husband, while the 2^nd Applicant had never been subjected to any threat or ill-treatment or violence by the husband at all. On the facts, the Board was not satisfied that the Applicants had suffered ill-treatment attaining a minimum level of severity and would face a genuine and substantial risk of being subjected to such ill-treatment, if refouled. It therefore found there was no basis for the 1^st Applicant’s claim that they would be harmed or killed by her husband should they be returned to the Philippines.

9.  The Board found the Applicants’ fear arose from a pure domestic dispute and the 1^st Applicant’s affairs with another man. It has nothing to do with race, religion, nationality, membership of a particular social group or political opinion protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol (the “Refugees Convention”). It found that BOR 2 Risk was not engaged. It was also satisfied that the Applicants could negate or avoid any possible risk of harm from the 1^st Applicant’s husband by internal relocation.

10.  For all these reasons, the Board upheld the Director’s decision in the notice and dismissed the Applicants’ appeal.

Grounds of application

11.  The Applicants did not advance any grounds of application in their Form 86. In their supporting affirmation, the 1^st Applicant reiterated her fear of harm from her husband and relied on that as a ground of application. In essence, that ground is a direct challenge of the Board’s finding of fact, which is impermissible in an application for judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision, which the Court will turn to in the next section.

Overall scrutiny

12.  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.

13.  The Applicants were legally represented before the Board. They did not raise any child specific claim on behalf of the 2^nd Applicant. The Board did not assess the 2^nd Applicant’s claim separately from the 1^st Applicant’s as his claim is based on the 1^st Applicant’s and stands or falls with it. To make separate assessments in the circumstances, would be unnecessary and artificial. The Board analysed the evidence carefully, tested it against common sense and inherent probability and gave reasons for its finding. It assessed the Applicants’ claim on the basis of the factual case as they asserted. On that basis, it found the husband is not the type of person who would kill people and the injuries the 1^st Applicant suffered did not attain the minimum level of severity. It found the risk of persecution arose from a private family dispute and the 1^st Applicant’s risk arising from her extra‑marital affairs is not protected by the Refugee Convention. It also found the risk of harm localized and could be avoided by internal relocation. Applying the law applicable to non-refoulement protection to the fact it accepted, 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. 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 finding 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.

Conclusion

14.  For the above reasons, the Form 86 is amended, but extension of time to file the leave application as amended and the application for leave to apply for judicial review are refused.

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