MAXIMO JENNIFER CONCHA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 354/2026, [2026] HKCA 1047

On Appeal From [2026] HKCFI 1627

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 354 OF 2026

(ON APPEAL FROM HCAL NO 1198 OF 2022)

________________________

_____________________

________________

J U D G M E N T

________________

Hon Cheng J (giving the Judgment of the Court):

Introduction

1.  This is the Applicant’s appeal against the decision of Deputy High Court Judge (Non-refoulement Claims) Jeffrey Chau (“the Judge”) dated 26 March 2026 (“the Decision”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 9 September 2022 (“the Board’s Decision”).

Background

2.  The Applicant is a national of the Philippines. On 12 November 2020, the Applicant lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by a loan shark because she could not settle the debt. The Applicant’s claim was rejected by the Director of Immigration (“the Director”) on 13 August 2021, and the appeal against the Director’s decision was rejected by the Board on 9 September 2022. Details of the Applicant’s claim and the Board’s reasons for rejecting the Applicant’s appeal can be found in the Board’s Decision, the hyperlink to which can be found in the Form CALL-1 dated 26 March 2026.

3.  The Board expressed scepticism regarding the Applicant’s evidence regarding the amount claimed to have been borrowed and whether she was really at risk of being murdered for it. In any event, the Board found that the Applicant could relocate in the Philippines in complete safety. It did not accept that the Applicant had established the risk of any of the proscribed harms.

4.  The Applicant’s application for leave to apply for judicial review was refused by the Judge on 26 March 2026. Details of the Judge’s reasons for refusing to grant leave can be found in the Form CALL-1.

5.  The Judge noted that the Board had found that the Applicant’s allegations were insufficient to make out any of the applicable grounds for non-refoulement and had not accepted substantial parts of her evidence, and had also found that the Applicant could relocate. The Judge further held that (1) the Applicant had failed to explain why she said that the Board’s Decision was unfair, (2) whilst the Applicant claimed that she had prepared her application without legal representation, her application for legal aid had failed, and the high standard of fairness applicable did not mean that the Applicant had an absolute right to free legal representation at all stages of the proceedings, and (3) the Applicant’s claim that the Board had ignored material evidence and facts, on the issues of (inter alia) relocation and lack of documentary evidence regarding the loan, was not made out, given that the Board had in fact considered these matters as shown in the Board’s Decision.

Grounds of Appeal

6.  In the Notice of Appeal filed on 8 April 2026, the Applicant stated that:

“I am not legally represented and have the right to submit grounds at a later time. my decision Totally Unfair I do not Think my claim determined Fairly.” (sic)

7.  The Applicant failed to comply with the directions given by the Registrar of Civil Appeals to lodge written submissions in support of the appeal on or before 19 May 2026. Accordingly, the Applicant is deemed to have waived the right to have an oral hearing of the appeal and to have elected to have the appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

Legal Principles

8.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will 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 was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at [14(6)]).

9.  The assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

Discussion and Disposition

10.  As to the complaint about the lack of legal assistance, the Court of Appeal has repeatedly stated that 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: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11].

11.  We do not accept that the lack of legal representation entitles the Applicant to put in fresh grounds at any stage and to disregard the Court’s directions as to the filing of submissions. In any event, the Applicant has not sought to rely on any further grounds.

12.  Finally, as to the complaint that the Applicant’s claim was not determined fairly, no particulars of why this is said to be the case have been identified. The Applicant has failed to identify or show any error in the Decision, or raise any viable ground of appeal against it.

13.  The Applicant’s appeal has no merit, and is dismissed with no order as to costs.