RE VALDEZ LIBRADA AMPARO AND ANOTHER

CACV 177/2025, [2026] HKCA 495

On appeal from [2025] HKCFI 988

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 177 OF 2025

(ON APPEAL FROM HCAL NO. 1778 OF 2019)

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JUDGMENT

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the appeal of the 1^st and 2^nd applicants against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 25 March 2025[1] refusing to extend the time for them to apply for judicial review and dismissing their applications for leave to apply for judicial review. The intended judicial review is in respect of the decision dated 19 February 2019 of the Torture Claims Appeal Board (“the Board”) dismissing their respective appeals against the decision dated 6 December 2017 of the Director of Immigration (“the Director”) which rejected their claims for non-refoulement protection.

The applicants’ claim

2.  The 1^st and 2^nd applicants are mother and son.  The 1^st applicant is a national of the Philippines born in 1977.  She last entered Hong Kong in 2009 as a foreign domestic helper and was permitted to remain until 3 April 2014.  She did not leave Hong Kong and on 3 April 2014 gave birth to the 2^nd applicant, whose father is a Nigerian man whom the 1^st applicant met in Hong Kong.  The 1^st applicant raised a non-refoulement claim for herself and her son on 26 September 2014.

3.  The applicants’ claims are based on their fear of being harmed or killed by the 1^st applicant’s husband due to the 1^st applicant’s extra-material affair in Hong Kong that resulted in the birth of the 2^nd applicant. The 1^st applicant claimed that her husband was an alcoholic and she was a victim of domestic violence.  She did not report the abuse to the authorities due to embarrassment. She came to Hong Kong to work and to support the family.  The 1^st applicant has been avoiding her husband since he found out about her affair with the Nigerian man and the birth of the 2^nd applicant.  She claimed that she has no resources to bribe the police for protection.  The details of the applicants’ claims were set out at [13] to [18] of the Board’s decision.

The Director’s decision and the Board’s decision

4.  By a decision dated 6 December 2017, the Director assessed the applicants’ claims jointly and rejected them on all applicable grounds including the torture risk^[2], BOR 3 risk^[3], BOR 2 risk^[4] and persecution risk^[5] grounds.  

5.  The applicants appealed the Director’s decision to the Board. They attended the hearing before the Board on 28 November 2018.  By a decision dated 19 February 2019, the Board rejected their appeal.

6.  In summary, the Board accepted the factual basis of the 1^st       applicant’s case.  It accepted that the applicant might have a subjective fear of harm by her husband over her affair with the 2^nd applicant’s father, but did not accept that her husband has demonstrated an intention to seriously harm or kill her or the 2^nd applicant, noting that a significant period had passed during which her husband had not made any threat to the applicant or her family.[6]   In the case of the 2^nd applicant, the Board whilst recognising that the forced separation of him from his biological father may cause some distress, did not find the separation would lead to serious harm of the kind that justified non-refoulement protection having regard to all the evidence[7] .  The Board also found that the 1^st applicant’s mother has accepted the birth of the 2^nd applicant and there is no evidence that the 1^st applicant’s family would not provide the applicants with assistance and support within their capacity.  The Board concluded that there is no real risk that either of the applicants will experience harm at the hands of the husband, or anyone else, now or in the reasonably foreseeable future[8] .  The Board further assessed, on the basis of the available country of origin information (COI), that state protection and internal relocation options were reasonably available to the applicants, and that the 1^st applicant would be able to sustain a living and to provide education for the 2^nd applicant upon their return to the Philippines.  Accordingly, the Board held that the applicants failed to make out a case for affording non-refoulement protection and dismissed their appeals.

The Judge’s decision

7.  By a Form 86 dated 26 June 2019, the 1^st applicant applied on behalf of herself and the 2^nd applicant for leave to judicially review the Board’s decision.  The application was late by more than five weeks as Order 53 rule 4(1) of the Rules of the High Court Cap.4A provides for such application to be made promptly and in any event within three months from the date when grounds for the application first arose.  The Form 86 or the accompanying affirmation did not provide any explanation for the delay or set out any proper grounds for seeking relief.

8.  The Judge held an oral hearing on 4 February 2025, which was attended by the applicants.  By a Form CALL-1 dated 25 March 2025, the Judge refused to extend time for the applicants to apply for judicial review and further dismissed their applications for leave to apply for judicial review.  His reasons were encapsulated in [12] to [20], which we will not repeat in details. 

9.  In summary, the Judge did not accept the 1^st applicant’s explanation that she was busy caring for her infant child constituted a satisfactory explanation for the delay.  The Judge took the view that the Board was entitled to find that the risk of harm to the applicants, even if real, was localised and could be mitigated by state protection and internal relocation within the Philippines.  Regarding the 2^nd applicant’s status as a minor, the Judge acknowledged the need to evaluate any risk of harm specific to him and found that the Board had properly assessed his claim, having regard to the availability of support and assistance for single mothers and illegitimate children in the Philippines, and the absence of social stigma or discrimination against the 2^nd applicant.  The Judge concluded that the intended judicial review had no prospect of success and refused to extend the time for appeal.

This appeal

10.  On 7 April 2025, the 1^st applicant filed a Notice of Appeal on behalf of herself and the 2^nd applicant to appeal the Judge’s decision.  The grounds of appeal state that the applicants disagreed with the decisions of the Director and the Board, who had relied on news that are not officially recognised and are hearsay.  

11.  On 9 April 2025, the Registrar of Civil Appeals drew the applicants’ attention to the fact that the 2^nd applicant is a minor and is required pursuant to Order 80 rule 2 of the Rules of High Court to act by a next friend, who should act by a solicitor, and further directed that steps be taken on his behalf, including possibly an application for legal aid, to rectify the position.  Despite the court’s directions, no step has been taken to comply with the requirements. On 30 July 2025, the Registrar of Civil Appeal directed that the appeal should be proceeded with.

12.  On 6 February 2026, the 1^st applicant lodged written submissions on behalf of herself and the 2^nd applicant.  She submitted that there was a lack of legal and language assistance, the Board’s decision to refuse her appeal was irrational and procedurally unfair, and the discriminatory act of the authorities in the quick disposal of non-refoulement cases is unacceptable.  The 1^st applicant did not provide any particulars or elaborations of her complaints.  She also did not identify any errors of the Judge in refusing to extend time and to dismiss their application for leave to apply for judicial review.

13.  At the hearing, the 1^st applicant stated that the 2^nd applicant is now studying in Hong Kong and asked that they be allowed to remain here.

Our reasons for decision

14.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

15.  Further, it is well established that the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers. The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

16.  In relation to the 1^st applicant’s appeal, neither the Notice of Appeal nor the written submissions have identified any error in the Judge’s decision or the reasons he gave for his decisions.  The submissions simply recite general propositions without any explanation as to how they relate to their case.  They do not amount to viable grounds for the Court of Appeal to intervene with the Judge’s decision.

17.  In respect of the complaint about lack of legal and language assistance, as a matter of law, it is not the case that a non-refoulement claimant is entitled to free legal representation at all stages of the process, and that the high standard of fairness required by law does not entail an interpretation service made available to an applicant at all times as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  We also note that the applicants were legally represented in the initial preparation of their case, including the completion of the non-refoulement claim form and the screening interview with the Director.  They were also assisted by an interpreter in the hearing before the Board and the hearing before the Judge.  We do not accept that the complaint about non-availability of legal representation or language assistance is made out or that there had been procedural unfairness in the proceedings before the Board or the Judge.

18.  Furthermore, the Board accepted the factual basis of the 1^st applicant’s claim, including her claimed fear of harm from her husband over her extra-marital affair and the birth of the 2^nd applicant, but found that the evidence did not establish a real risk of substantial harm from her husband or anyone else.  These findings are within the purview of the Board.  There is no proper basis to say that its conclusions are wrong or irrational.  In short, the 1^st applicant’s appeal has no merits and fall to be dismissed.

19.  In the case of the 2^nd applicant, we are mindful of the fact that he is a minor and that he has not been legally represented in the court proceedings, as required by Order 80 rule 2 of the Rules of the High Court.  We have examined the Board’s decision with particular regard to his case in light of the need to separately consider whether his claim had been properly assessed and determined by the Board in a manner sufficient to meet the high standards of fairness required, and to see whether there are matters that may support potential minor-specific non-refoulement bases that had not been made to the Board owing to the lack of legal representation: Fabio Arlyn Timogan [2020] HKCA 971 at [34] and Re Jasvir Singh [2021] HKCA 53 at [31] to [33]. 

20.  The factual basis of the 2^nd applicant’s claim was premised fundamentally and entirely on his mother’s claim.  It was asserted on his behalf that he would be harmed or killed by the 1^st applicant’s husband as he was the son of another man.  Even though the 2^nd applicant’s claim was assessed together with his mother’s claim, the Board was keenly aware of the fact that the 2^nd applicant was a minor and had assessed non-refoulement grounds specific to his claim, namely the potential effect of his forced separation with his biological father, and whether there would be resources and means to support him if he were removed to the Philippines.  On the available evidence, it is open to the Board to assess that the separation would not lead to serious harm justifying non-refoulement protection and that the 1^st applicant’s mother has accepted him and will be able to provide him with support and assistance.  It is further open to the board to find, on the available COI, that internal relocation options are reasonably available and viable in light of the 1^st applicant’s work experience and education background.  We note the applicants have not challenged these assessments and findings of the Board. 

21.  We have given careful consideration to whether, due to the absence of legal representation for the 2^nd applicant at the stage of the proceedings before the Board, there were matters that might provide a basis for a claim specific to him as a child which had not been advanced or properly advanced before the Board. We can see none; nor have the applicants suggested any other than those already canvassed before the Board.  

22.  In the circumstances, we agree with the Judge that the 2^nd applicant’s intended judicial review has no prospect of success and he did not err in refusing his application for leave to apply for judicial review.

23.  Accordingly, we treat the non-compliance with Order 80 rule 2 of the Rules of the High Court and the 2^nd applicant’s lack of legal representation as a mere irregularity without rendering his appeal a nullity: Zoraydah v Torture Claims Appeal Board [2020] HKCA 442.  As the 2^nd applicant’s appeal has no merits, it falls to be dismissed.

Disposition

24.  For the reasons above, we dismiss the appeal of the 1^st and 2^nd applicants.

[1] [2025] HKCFI 988

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[6] [70] to [82] of the Board’s decision

[7] [78] of the Board’s decision

[8] [80] of the Board’s decision