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HCAL 473/2023
[2026] HKCFI 4269
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 473 OF 2023
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BETWEEN
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Domingo Christina Balacuit |
1st Applicant |
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Domingo Angela Balacuit (a minor), |
2nd Applicant |
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by Domingo Christina Balacuit, her next friend |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, “Domingo Christina Balacuit” be named as the 1st applicant, the name of the 2nd applicant be amended to “Domingo Angela Balacuit (a minor), by Domingo Christina Balacuit, her next friend”, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the name of the putative interested party be amended to “Director of Immigration”.
2. The 1st and 2nd applicants’ application for leave to apply for judicial review be dismissed.
Observations for the applicants:
The Leave Application
1. By way of Form 86 dated and filed on 27 March 2023, the applicants applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 10 March 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000473_2023_files/the_Board's_Decision.pdf
2. The Board found that the applicants failed to establish their claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 30 June 2022, which rejected the applicants’ non-refoulement claims.
Amendments
3. In Form 86, the applicants’ names were not stated properly. Thus, on this court’s own motion, “Domingo Christina Balacuit” is named as the 1st applicant. The other applicant, Domingo Angela Balacuit, who is the 1st applicant’s daughter and a minor, is named the 2nd applicant. The 2nd applicant is represented by the 1st applicant as her next friend and her name is amended to “Domingo Angela Balacuit (a minor) by Domingo Christina Balacuit, her next friend” on this court’s own motion.
4. The applicants named “Torture Claims Appeal Board Non-Refoulement Claims Petition Office” as both the putative respondent and the putative interested party in Form 86. In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.
5. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a party at all.
6. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.
Legal representation of the 2nd applicant
7. The 2nd applicant is a minor born in Hong Kong out of wedlock on 8 December 2021 and is represented by the 1st applicant in the Leave Application.
8. The 1st applicant applied for legal aid for both herself and the 2nd applicant, but their applications were refused by the Director of Legal Aid on 8 June 2023.
9. At the hearing before this court on 14 July 2026, the 1st applicant confirmed that she would not engage a private lawyer to represent the 2nd applicant.
10. As the 2nd applicant was legally represented before the Director and the Board, and no new evidence would be advanced in the Leave Application, this court considered that the lack of legal representation for the 2nd applicant in the Leave Application was a mere irregularity and it would not prejudice the 2nd applicant. Hence, this court waived the irregularity and proceeded to deal with the Leave Application.
The applicants’ case
11. It is not necessary for this court to repeat the details of the applicants’ case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
12. As summarised by the Board in paragraph 70 of the Board’s Decision, the applicants’ case was based on a number of heads of claim, namely that:-
(1) The applicants could not return to the Philippines because the 1st applicant’s husband would seriously harm or kill them both as the 1st applicant had a child, ie the 2nd applicant, with another partner in Hong Kong. It was claimed that the 1st applicant’s husband made this threat in a phone call in October 2021 and repeated the threat in a message in February 2023;
(2) The 2nd applicant would face discrimination amounting to serious harm in the Philippines both because she is an illegitimate child and because she is a mixed-race child, and the 1st applicant would be unable to protect her from such harm or to obtain state protection from such harm on the 2nd applicant’s behalf;
(3) The 2nd applicant might face further serious harm should she go to the Philippines because the 1st applicant had no support network in place to provide them with accommodation or assist them with accessing available services or community support. It was claimed that the 1st applicant’s family would not assist them, and alternatively, even if her family were willing to do so, they could not stay with the 1st applicant’s family because of the threat posed by the 1st applicant’s husband; and
(4) Both the 1st and 2nd applicants faced serious harm in the Philippines at the hands of human traffickers because they would be forced to live on the street.
Oral hearing
13. The applicants requested for an oral hearing of the Leave Application and their case was heard on 14 July 2026.
14. As aforesaid, the 2nd applicant is a minor and was represented by her mother, ie the 1st applicant, at the hearing.
15. When this court asked the applicants for the grounds of their intended judicial review, the 1st applicant merely said that she had a daughter here, she could not leave her alone and needed to take care of her, she was not able to go home because she was pregnant, if she went back, her husband would not accept her daughter, and she was very scared to go back home. When this court asked the 1st applicant what was wrong with the Board’s Decision, the 1st applicant just said that she wanted to know why her case was not approved.
16. In respect of the 2nd applicant’s case, the 1st applicant said that if she brought the 2nd applicant back to the Philippines, the 1st applicant’s family and people in general would not accept her, she would be discriminated and bullied due to her skin color as she was of mixed-race ethnicity and regarded as “black”, and also due to her being a child born out of wedlock. The 1st applicant said that the 2nd applicant’s father was an African and she had no idea where he was.
17. The 1st applicant added that no one would support them financially and she had no means to support them financially, both she and the 2nd applicant would end up begging on the street, she wanted to ask for a chance for the 2nd applicant to remain in Hong Kong to get education and finish primary school in Hong Kong, and after that they could go home.
Grounds for judicial review
18. The applicants are required to identify clearly the grounds for their intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
19. The applicants did not advance any ground for their intended judicial review in their Form 86, nor in the 1st applicant’s supporting affidavit dated 27 March 2023.
20. As mentioned, at the oral hearing, the 1st applicant merely reiterated the factual basis of the non-refoulement claims for herself and for the 2nd applicant, and asked that she and the 2nd applicant be allowed to stay in Hong Kong for the 2nd applicant to finish her primary education.
Discussion
21. First of all, the applicants’ danger upon returning to their country had been duly assessed but rejected by the Board. If they intend to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
22. The 1st applicant’s wish for the 2nd applicant to receive education up to primary level in Hong Kong is not a ground for judicial review at all.
23. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).
24. Thus, it is not for this court to re-assess the applicants’ cases or their danger upon refoulement to the Philippines. This court will only scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
25. In assessing the 1st and 2nd applicants’ appeal/petition, the Board held an oral hearing on 24 February 2023. The applicants were present and were represented by duty lawyer assigned by the Duty Lawyer Service. Thus, the applicants were given the opportunity to present their cases to the Board through their legal representative.
26. As can be seen from the Board’s Decision, the Board had extensively analyzed every aspect of their claims and provided full and detailed reasoning in rejecting their claims for non-refoulement protection.
27. The Board was fully aware that the 2nd applicant’s case required a separate assessment of the risk of harm faced by a child having regard to her personal circumstances and the possibility of any child-specific risk of harm or discrimination, as well as the necessity to consider whether there were any grounds for non-refoulement applicable to the 2nd applicant as a minor which were not properly advanced on her behalf (see paragraphs 72 and 73 of the Board’s Decision).
28. The Board had laid out its assessment of the credibility of the applicants’ claim and its material finding of facts in relation to the applicants’ claims in paragraphs 75 to 90 and paragraphs 91 to 103 of the Board’s Decision respectively. It is therefore unnecessary for this court to repeat the same here.
29. In gist, in respect of the claimed threat from the 1st applicant’s husband, the Board found the 1st applicant’s evidence about the phone calls in which she claimed to have received these threats, both directly from her husband and indirectly from her sister, as evasive and untruthful. The board considered that while the 1st applicant’s husband might be unhappy and angry about the 1st applicant’s pregnancy in Hong Kong, the Board was not prepared to accept that the 1st applicant’s evidence as to the threat of serious harm was reliable, and found the claim that her husband had threatened to kill her and the child, ie the 2nd applicant, to be not credible.
30. The Board also found that the 1st applicant’s evidence at the Board’s hearing about the claimed threat posed by her husband was both vague and inconsistent, and insofar as her claim that such threat was repeated in a message in February 2023 was concerned, her evidence was completely lacking in credibility.
31. The Board therefore found that the 1st applicant’s claims regarding her problems in the Philippines were not credible, and the 1st applicant had failed to establish that she had a real fear of harm at the hands of her husband, which was the most crucial aspect of her claims. The Board found that the 1st applicant’s evidence regarding the threat posed by her husband to her and the 2nd applicant should they return to the Philippines was simply untrue.
32. The further claims of risk that the applicants would be forced to live on the street because they were unable to return to the 1st applicant’s home village due to the threat from the 1st applicant’s husband also depended upon the credibility of the 1st applicant’s claims about that threat, which the Board did not accept.
33. As to the claim that the 1st applicant’s family would refuse to provide her with any support should she return to the Philippines, the Board found that the 1st applicant’s evidence on this matter was also inconsistent and lacking credibility, and that it was completely unfounded to assume that the 1st applicant’s family would be unwilling to support them.
34. Notwithstanding the country of origin information (“COI”) regarding the problems about human trafficking in the Philippines, the Board found that the claimed threat to the applicants from human traffickers in the Philippines had no credibility, because there was no credible basis for a finding that the applicants would end up sleeping on the streets should they return to the Philippines, and thus there was no basis to suggest that they would be vulnerable to human traffickers.
35. With regards to the 2nd applicant’s case that she, as a child born out of wedlock, would face serious discrimination amounting to persecution or torture or CIDTP[1], the Board noted that COI did not support such assertions. Given the evidence before it, particularly the COI referred to by Government counsel for the Director regarding the prevalence of illegitimacy in the Philippines, the Board was satisfied that the submissions regarding the harm that the applicants might face because of the 2nd applicant’s illegitimacy were exaggerated. The Board found that these submissions had no basis in the evidence before it.
36. In respect of the 2nd applicant’s specific risk as a child of mixed-race, the Board noted that the COI before the Board did not support a claim that a child of mixed-race faced serious discrimination in the Philippines. The Board accepted the submission of Government counsel that the claims regarding the feared discrimination and bullying did not support a finding that there was a real risk that such treatment would meet the required level of severity to meet the standard required under various heads of the USM.
37. The Board therefore did not accept the 1st applicant’s claim to fear harm either to herself or to the 2nd applicant by her husband or anyone else should she return to the Philippines.
38. The Board noted the principles set down in various benchmark cases for children non-refoulement claimants. The Board had dealt with all the submissions made by the duty lawyer for the 2nd applicant, especially in relation to her status as an illegitimate mixed-race child. The Board found that those submissions were unfounded in this case. The Board was also satisfied that there was nothing in the evidence before it, including the COI, that established any other basis for the 2nd applicant’s claims.
39. In view of the Board’s findings as summarised above, the Board did not accept that the applicants’ claims were well-founded. Accordingly, the Board did not accept that the applicants faced a real risk of ill-treatment as claimed if they were to return to the Philippines.
40. The Board had fully considered all the child-specific risks of the 2nd applicant, given separate consideration to the personal circumstances of the 2nd applicant, separately from the 1st applicant.
41. Hence, the Board concluded that both the 1st and 2nd applicants were not entitled to non-refoulement protection under any of the applicable grounds.
42. Although the Board did not consider state protection and internal relocation, it was unnecessary to make findings on the availability of state protection as the Board found the applicants were not at a real risk of any of the proscribed forms of harm at the hands of the 1st applicant’s husband, human traffickers or anyone else in the Philippines.
43. As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicants have established that they qualify as refugees pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicants have established a real risk of persecution in their home area (see Gardi v SSHD [2002] 1 WLR 2755).
44. As it is the Board’s finding that the applicants had no real risk of any of the proscribed forms of harm from the 1st applicant’s husband, human traffickers or anyone else in the Philippines, it is not necessary for the Board to consider internal relocation.
45. The finding of facts, including assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicants’ appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
46. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
47. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicants have failed to establish such a claim and hence leave must be refused.
Conclusion
48. For reasons aforesaid, the Leave Application in respect of both the 1st and 2nd applicants is dismissed.
Dated the 29th day of July 2026
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( Gladys LEE )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicants/the applicants’ solicitors
on: 29/07/2026
Applicants’ ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 29/07/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 20598-20599
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 126/22 (formerly RBCZ 5000323/21)
QA T/C 306/22 (formerly RBCZ 5000205/22)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Cruel, inhuman or degrading treatment or punishment.
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