REBESE MICHELLE MARIE ANDINO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 351/2026, [2026] HKCA 1042

On Appeal From [2026] HKCFI 1640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 351 OF 2026

(ON APPEAL FROM HCAL NO 1262 OF 2022)

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J U D G M E N T

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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 November 2022 (“the Board’s Decision”). By that decision, the Board upheld the decision of the Director of Immigration rejecting the Applicant’s non-refoulement claim.

Background

2.  The Applicant is a national of the Philippines. On 5 January 2021, the Applicant lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her husband. The Applicant’s claim was rejected by the Director of Immigration (“the Director”) on 18 October 2021, and the appeal against the Director’s decision was rejected by the Board on 9 November 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 did accept some aspects of the Applicant’s story, but otherwise found many aspects of the Applicant’s account to be exaggerated, inherently inconsistent, incredible, or to defy logic. The Board found that the risk of the Applicant being killed or harmed by her husband if she returned to the Philippines was low, given (inter alia) that the Applicant could not explain matters such as why she chose to work in her husband’s home town when she was supposedly trying to hide from him, and that her husband had maintained contact with the Applicant’s mother to ask about the wellbeing of his children, without seeking to approach them.

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. The Judge noted that the Applicant had not raised any grounds of challenge in her Form 86 and affidavit, other than to say that she did not agree with the Board. He went on to consider the Board’s Decision and to note that the Board, after taking into account the evidence, found that the Applicant’s allegations were insufficient to make out any of the applicable grounds for non-refoulement. The Judge went on to say that the Board came to the conclusion that there would be sufficient state protection for the Applicant and that relocation would be available if the Applicant were to return to the Philippines.

Grounds of Appeal

5.  In the Notice of Appeal filed on 2 April 2026, the Applicant states the following that:

“I am Disagree with The decision Maker authorities. decision Maker give my decision totally Unfair. They not give me Justice. decision Maker give decision Like Torture Claims Appeal Board / director Immegration. I do not Think my claim determined Fairly. Sir I have one son here if I go Back my country My Family Kill me. Please allow me to stay in Hong Kong For Safety of my Life. Thank.” (sic)

6.  In her skeleton argument filed on 18 May 2026, apart from repeating her claim, the Applicant essentially argued that:

(1)  The Decision was unreasonable.

(2)  The Judge failed to apply the principles of irrationality and procedural fairness to the decisions of the Director and the Board.

(3)  The Decision has real and significant implications for her substantive right not to be subject to torture and her right to non-refoulement protection.

(4)  The Judge reviewed her torture claims lightly.

(5)  The Judge failed to exercise greater care for her problems in her home country, despite the proof submitted for her claim.

(6)  The Judge failed to analyse her claim properly.

(7)  The Judge might not have accepted her claims that had been refused by the Director and the Board.

(8)  The Board failed to give her sufficient chance to arrange relevant evidence for her claim and appeal.

(9)  The Board relied significantly on the source of news which is not officially recognised or is simply hearsay.

(10)  The Board failed to evaluate and make a finding of fact as to whether there is a consistent pattern of gross and mass violation of human rights in her home country.

(11)  The Board failed to analyse and assess whether state protection exists in her home country, and misdirected itself as to the extended meaning of state protection.

7.  At the hearing of the appeal, the Applicant had nothing to add.

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 were 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.  The Board found that the Applicant’s allegations were insufficient to make out any of the applicable grounds for non-refoulement, which is a finding that the Board was entitled to make, on the evidence placed before it. The Applicant did not put forward any ground before the Judge to challenge the Board’s finding.

11.  The matters raised in the Applicant’s Notice of Appeal and skeleton argument are all general allegations without particulars. They fail to engage with the reasoning in the Decision or to show how it is said to be wrong. They fail to identify any error in the Decision. They do not constitute any valid grounds of appeal against the Decision.

12.  Whilst the Judge stated that the Board concluded that (1) there would be sufficient state protection and (2) relocation would be available if the Applicant were to return to the Philippines, in fact, the Board had found that the Applicant did not establish the risk of harm she claimed, so that (1) the assessment of adequate state protection did not arise, and (2) there was no risk which the Applicant needed to avoid by way of relocation.[1] This error does not however affect the Judge’s overall conclusion that the Applicant’s intended application for judicial review was bound to fail.

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