MAGO SHYR ADAME AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

1.  The Form 86 be amended on the Court’s own motion; and

2.  The application for leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 for leave to apply for judicial review (the “leave application”) of the decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 17 October 2023 (the “2023 Decision”) in respect of the 1^st Applicant (the “mother”) and dated 6 June 2025 (the “2025 Decision”) in respect of the 2^nd Applicant (the “son”), dismissing their respective appeals against the respective decisions of the Director of Immigration (the “Director”) in his notice of decision dated 4 July 2023 and 14 February 2025, refusing their respective applications for non-refoulement protection.   The 1^st Applicant is the mother of the 2^nd Applicant.  Initially, the leave application was taken out by the mother on 22 November 2023 on her own behalf.  On 30 July 2025 upon the mother’s application, leave was granted to add her son as the 2^nd Applicant.

2.  As the son is a minor, the mother representing her had been advised by this Court during the hearing on 1 September 2025 of the requirement under Order 80 rule 2 of the Rules of the High Court that she must seek legal representation for the son so that his specific interest may be fairly put before the court.  She had been advised to seek publicly funded legal representation from the Legal Aid Department or legal representation from a private firm of solicitors.  The mother applied for legal aid for the son, but the application was refused. 

3.  At the hearing on 10 December 2025, both Applicants were not legally represented.  The 1^st Applicant said she did not have means to engage private legal representation.  She confirmed that she was comfortable to represent her son at the hearing as she had previously attended before the Board.  Having considered the applicable law, the leave application, the issues raised, that the Applicants had been legally represented before the Director, that no new evidence would be advanced, and the 1^st Applicant’s expressed intention not to seek legal representation for herself and her son, the Court considered their leave application may be justly determined without prejudicing the interest of the 2^nd Applicant, despite the absence of legal representation.  Hence, the Court considered the absence of legal representation a mere irregularity which would not render the proceedings void and proceeded to make the determination.

The Applicants’ case

4.  The Applicants are Philippine nationals, now aged 40 and 2 respectively.  Their personal background, the factual background leading to the present application, the basis of their claims, the arguments advanced on their behalf, the finding of the Board and the reasons for its Decisions are set out in details in the Board’s Decisions.  The hyperlink to the Board’s 2023 Decision in respect of the mother[1] and the hyperlink to the Board’s 2025 Decision in respect of the son[2] are included below for reference.  The mother was married and has two children in the Philippines.  She came to work in Hong Kong in 2018 and soon developed a relationship with an Indian non-refoulement claimant (“her boyfriend”).  She last left the Philippines in October 2022.  Her husband learned about her pregnancy in early 2023.  He called the mother and threatened to kill her if she returned to the Philippines.  The mother blocked his telephone number and had never been contacted by him thereafter.  Subsequently she gave birth to the son in Hong Kong in August 2023.  But, she and her boyfriend are not married to one another.  In gist, the mother claims that, if returned to the Philippines, she will be harmed or killed by her husband for giving birth to the son by another man, ie out of wedlock, and will not be accepted by her family for the same reason.  In respect of her son, the mother claims for the same reason that he will be harmed or killed by her husband and will not be accepted by her family. 

The Board’s finding in the 2023 Decision

5.  The centrepiece of the Applicants’ claim is that the mother will be harmed or killed by her husband for giving birth to the 2^nd Applicant; and the 2^nd Applicant will be harmed or killed by the mother’s husband for being born out of wedlock.  The Board found the mother’s evidence vague, unpersuasive and inconsistent.  Since blocking his telephone number, the mother had no further contact from her husband.  On the mother’s own evidence, he was not violent, he had never harmed her in the past, he threatened her only once and then moved out of the home he shared with the 1^st Applicant’s mother and their children.  He visited their children but did not ask about the mother or threaten her through her mother.  The Board accepted that the mother’s husband was angry in 2022 when he learned about her pregnancy with another man and threatened her once, but was not satisfied that he will harm her upon her return to the Philippines.  It was not satisfied that there are substantial or strong grounds or a real chance or a real risk that her husband would inflict harm amounting to torture, a risk to her life, cruel or inhuman treatment or punishment or persecution upon her if she returns to the Philippines.

6.  Applying the law applicable to non-refoulement protection, the Board was not satisfied that she had proved her entitlement to protection under any of the applicable grounds under the Unified Screening Mechanism (“USM”). 

The Board’s finding in the 2025 Decision

7.  The 2025 Decision was made by the Board constituted of the same adjudicator who made the 2023 Decision.  The mother represented her son and testified before the Board.  The mother confirmed, contrary to her earlier position, that her boyfriend’s family accepts the son and it is now safe for him to go to live in India.  She also confirmed that her son is entitled to citizenship in both the Philippines and India.  She said if her son is required to live in the Philippines, her concern is only in relation to her husband.  Her son’s risk state is only the Philippines. 

8.  The centrepiece of the son’s claim is similar to that of his mother’s. In addition, his mother claims on his behalf that internal relocation is not a viable option because they do not have financial means to start a new life in other parts of the Philippines and state protection is impossible due to deep-rooted corruption.  She also claims that the government and local charitable organizations will not provide his son with shelter and or welfare or education because he does not have a birth certificate.   The Board noted that she departed from some of her evidence given previously in her own appeal.  Largely for the same and similar reasons, the Board was not satisfied that her husband will harm her son upon his return to the Philippines.  It was not satisfied that one threat made almost two years ago sufficient to establish that he will harm them if the mother returns to the Philippines with her son. 

9.  The mother did not claim that her son would suffer discrimination that meets any of the non-refoulement grounds because he is a Muslim and the Board was not satisfied that there is any evidence that he would.  Despite having been specifically asked during the hearing whether there were any other reasons that her son would be unable to live safely in the Philippines, the mother raised no further child specific claims.  The Board was also satisfied that as a Filipino citizen the son would enjoy the same rights to education, health care and other benefits as any other Filipino citizens, despite his illegitimate status.  Likewise, it found there are no substantial or strong grounds or a real chance or a real risk that her husband would inflict harm amounting to torture, a risk to her son’s life, cruel or inhuman treatment or punishment or persecution upon the son if he returns to the Philippines.

10.  Applying the law applicable to non-refoulement protection, the Board was not satisfied that she had proved her son’s entitlement to protection under any of the applicable grounds under the USM. 

Legal principles applicable to judicial review

11.  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[3].

Grounds for judicial review

12.  The Applicants did not advance any grounds of review in their leave application.  After the legal principles in the preceding section had been explained to the 1^st Applicant, she confirmed that she had no complaint about error of law, procedural unfairness or irrationality and left it to the Court to look for such vitiating elements in the Decision for her.  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. 

Conclusion

13.  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.  The son’s claim is hinged on the mother’s.  The source of their feared harm is from the mother’s husband.  The Board considered the son’s leave application separately from the mother’s.  Though the mother raised no child specific claim for her son, the Board paid special attention to and considered his personal circumstances in view of his religion and status as an illegitimate child. 

14.  The Board analysed the evidence carefully, tested it against common sense and inherent probability.  Despite its comments about the quality of the mother’s evidence, it basically accepted her evidence on the primary facts, but rejected the inference she drew from those primary facts.  It gave full reasons for its finding.  It was on that basis that 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 under the USM.  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 findings 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

15.  For the above reasons, the Applicants’ leave application is 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