RE FRANCISCO CREAMLYN RIVAS

CACV 364/2026, [2026] HKCA 1087

On Appeal From [2026] HKCFI 1706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 364 OF 2026

(ON APPEAL FROM HCAL NO. 390 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 26 March 2026[1] refusing her application for leave to apply for judicial review against the decision dated 23 May 2022 of the Torture Claims Appeal Board (“the Board”). The Board had dismissed her appeal against the decision dated 5 July 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 1989.   She last arrived in Hong Kong to work as a foreign domestic helper on 2 August 2018.  After her employment contract was terminated on 3 January 2021 and her applications for extension were refused, she did not depart and surrendered to the Immigration Department on 19 April 2021.  She later lodged a non-refoulement claim on the basis that if she returned to the Philippines, she would be harmed or killed by her creditor due to her inability to repay a loan she took out for paying an employment agency to secure work in Hong Kong.  Details of the applicant’s claim, her arguments before the Board and the Board’s reasons for rejecting her appeal were set out in the Board’s decision[6].   

3.  The Board largely accepted the applicant’s evidence and that she had a subjective fear that her creditor would harm her.  However, the Board was not satisfied that the evidence demonstrated there were threats or harassment that amounted to torture, or any injury that attained the minimum level of severity, or that the applicant would be arbitrarily deprived of her life or sentenced to death penalty, or that her claimed harm was for a convention reason.  The Board also noted that the applicant and her family had never approached any authority for help.  On the basis of the country-of-origin information (“COI”), the Board found that effective state protection was available to the applicant in that there are a functioning legal system and reasonably effective police force and specific government agencies to address unfair money lending practices and harassment by illegal lenders.  The Board further assessed that it would be safe and economically viable for the applicant to relocate to Roxas City.  The Board accordingly concluded that the applicant failed to satisfy the requisite threshold entitling her to protection under any of the applicable grounds.  

4.  By a Form 86 filed on 26 May 2022, the applicant applied for leave to judicially review the Board’s decision. She did not provide any grounds for seeking relief or point to any error of law, procedural unfairness or irrationality in the Board’s decision.  An oral hearing was held during which the applicant indicated she had nothing to add to her application.   By a Form CALL-1 dated 26 March 2026, the Judge refused her application.   In gist, the Judge held that the intended challenge had no realistic prospect of success as the Board’s decision was comprehensive and supported by adequate reasons, and there was no public law ground to challenge the decision.  

Appeal to this Court

5.  On 8 April 2026, the applicant filed her Notice of Appeal against the Judge’s decision.  The grounds of appeal stated that the applicant disagreed with the decisions of the court, the Board and the Director, and that the decisions were unfair, and the applicant’s life in the Philippines is not safe.

6.  The applicant has lodged written submissions, which principally complained that the lack of legal and language assistance rendered the Board’s decision irrational and procedurally unfair.  It was also argued that the Board and the authorities were discriminatory and were only concerned to quickly disposed of the non-refoulement cases.  Notably, the applicant did not indicate how these submissions relate to her case.

7.  At the hearing, the applicant stated that she had nothing further to add to her submissions,

Discussion

8.  In assessing the merits of the appeal, we shall 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.

9.  Further, it is well-established that assessments of evidence, country of origin information (COI), risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are primary decision makers. The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

10.  The arguments advanced by the applicant in this appeal were never raised in the application made to the Judge.  It is established law that an appellant is not entitled to rely on grounds and arguments that were not argued in the court below, especially when they are fact sensitive: Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356.  Further, none of the grounds or arguments is directed at the Judge’s decision. The applicant has not identified any error in the Judge’s reasons and his conclusion that the intended judicial review has no realistic prospect of success.  For these reasons alone, the appeal should be dismissed.

11.  In any event, the grounds and arguments advanced by the applicant in this appeal is unarguable. 

12.  Firstly, on the complaint of lack of legal and language assistance, this Court has repeatedly held that the law does not require a non-refoulement claimant to be provided with free legal representation at all stages of the process, and that the high standard of fairness required by law does not entail an interpretation service be made available to an applicant at all times as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  Importantly, the applicant has not indicated what further matters or arguments she would have put forward to support her claim if she had legal or language assistance in the process before the Board.  It is also pertinent to note that in the hearing before the Judge she was assisted by an interpreter.  We also note that all the court documents filed in this appeal and in the court below were in English, which suggests that the applicant has access to language assistance of her own.

13.  Secondly, we do not accept there was procedural unfairness in the proceeding before the Board or that the Board made its determination in haste.  It is evident from its decision that the Board reached its assessment on the risk of harm to the applicant after full consideration and careful analysis of the applicant’s evidence and the COI.  The Board was entitled to find there was no real risk that the applicant would suffer significant harm from her creditor having regard to the objective COI and for the reasons it gave.  There is no proper basis for the Court to interfere with its assessment and findings.  

14.  Thirdly, insofar as the applicant seeks to challenge the Director’s decision, it is impermissible as the decision of the Director is no longer susceptible to judicial review as the applicant had appealed it to the Board: Re Moshsin Ali [2018] HKCA 549.

15.  For the above reasons, the applicant’s appeal has no merits.  Accordingly, we dismiss the appeal.

[1] [2026] HKCFI 1706

[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.