PONTINO EVELYN VILLENA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 537/2026, [2026] HKCA 1249

On Appeal From [2026] HKCFI 2161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 537 OF 2026

(ON APPEAL FROM HCAL NO 920 OF 2022)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge (Non-Refoulement Claims) Ken To (“the Judge”) dated 18 May 2026 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 20 August 2021 (“the Board’s Decision”), whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 15 September 2020.

2.  The Applicant alleges that if she is refouled back to the Philippines, she would be at risk of being harmed or killed by her husband because he would find out about her pregnancy and giving birth to a child out of an extra-marital affair in Hong Kong[1].  The Applicant’s background, the basis of her claim, the findings of the Board and its reasons for dismissing her appeal against the Director’s decision have been set out in detail in the Board’s Decision referred to by the Judge in his decision (see §1 of the CALL-1 Form).  We do not propose to repeat them here.

3.  The Judge’s reasons for dismissing the Applicant’s leave application are set out at §§4-15 of the CALL-1 Form.  In gist, the Judge held that the Applicant failed to provide any explanation for her delay in taking out her leave application and, in any event, she failed to provide any ground to challenge the Board’s Decision, and her intended judicial review of the Board’s Decision was not reasonably arguable.

THIS APPEAL

4.  In her Notice of Appeal filed on 26 May 2026, the Applicant merely states that she wants to appeal against the Judge’s decision which she alleges is unreasonable.

5.  The Applicant has failed to lodge written submissions in support of her appeal in accordance with the directions given by the Registrar of Civil Appeals on 26 May 2026.  Accordingly, she is deemed to have waived the right to have an oral hearing of her appeal and elected to have her 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.

DISCUSSION

6.  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 was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

7.  Further, 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, at §13.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

8.  The Applicant has failed to raise any viable ground of appeal against the Order.

9.  The Applicant’s appeal has no merit, and is dismissed.