RE VILAVER BUENALYN DALINA

CACV 384/2026, [2026] HKCA 1117

On Appeal From [2026] HKCFI 1721

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 384 OF 2026

(ON APPEAL FROM HCAL NO. 540 OF 2022)

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J U D G M E N T

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Hon Chu VP (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) Calvin Cheuk (“the Judge”) given on 30 March 2026[1] refusing her application for leave to apply for judicial review against the decision dated 14 June 2022 of the Torture Claims Appeal Board (“the Board”). The Board had dismissed her appeal against the decision dated 28 October 2021 of the Director of Immigration (“the Director”) which in turn had rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2[5] risk grounds.

Background

2.  The applicant is a national of the Philippines born in 1987.   She last arrived in Hong Kong on 16 November 2019 and was permitted to remain as a visitor for two weeks.  However, she did not depart and has since overstayed. On 13 November 2020, she surrendered to the Immigration Department and later lodged a non-refoulement claim. Her claim was based on fear of binge harmed or killed by her brother-in-law because she had used the title deeds of land owned by her husband’s family as collateral for a loan from a moneylender to enable her to pay the placement fees to work in Hong Kong.  Her husband and his family were furious on discovering this, and her brother-in-law and his wife threatened to kill her on her return to the Philippines. Details of the applicant’s background, the basis of her claim and the Board’s reasons for rejecting her appeal were set out in the Board’s decision[6].

3.  By a Form 86 filed on 27 June 2022, the applicant applied for leave to judicially review the Board’s decision.  She did not provide any grounds for seeking relief.  The Judge heard the application at an oral hearing held on 5 February 2026, during which the applicant indicated she had nothing further to add to her application. 

4.  By a Form CALL-1 dated 30 March 2026, the Judge refused her application.  In gist, the Judge was not satisfied that the intended judicial review was reasonably arguable with realistic prospect of success in that the Board had carefully considered the evidence, adequately explained the reasons for its decision and no error of law, irrationality or procedural unfairness could be discerned.

Appeal to this Court

5.  On 13 April 2026, the applicant filed her Notice of Appeal against the Judge’s decision. She did not put forward any grounds of appeal other than stating that she disagreed with the decisions of the court and the Board and asked for a reconsideration of her case.

6.  The appeal was listed for hearing on 8 June 2026.  Despite directions given by the Court, the applicant did not lodge any written submissions.  She was thus deemed to have waived her right to make submissions and the scheduled hearing was vacated pursuant to the directions of the Court.  We have therefore proceeded to determine the appeal on the basis of the available documents and materials.

Discussion

7.  In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, 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.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

8.  In the present case, the Board determined the applicant’s appeal without an oral hearing, finding it reasonably clear that the applicant had provided everything she wished to adduce because the applicant had already provided written submissions, attended the screening interview, indicated that she had no further information and provided scant details in her notice of appeal.  The Board accepted that the applicant’s brother-in-law was angry about the applicant had, without the knowledge or authority of her husband or his family members, used the family property as collateral for a loan.  However, it was not satisfied there was evidence to show a real risk of the applicant being pursued by her brother-in-law or other members of her husband’s family for the reasons given in [33] to [35] of its decision, including the fact that there were limited threats, and there was limited contact between the applicant and her husband for a long period of time These are findings of fact properly open to the Board based on the evidence it received and for the reasons it gave.  The applicant has not pointed to any reasonably arguable legal error, procedural unfairness or irrationality in the Board’s decision.   

9.  In this appeal, the applicant has not put forward any viable grounds of appeal.  She has not been identified any error in the Judge’s decision.  We are satisfied that the Judge gave proper and adequate reasons for his refusal of the application.  The applicant’s appeal is accordingly dismissed.

[1] [2026] HKCFI 1721

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

[3] This refers to 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 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.

[5] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.