RE GUMIRAN MERLYN LOPEZ

CACV 667/2 025, [2026] HKCA 14

On appeal from [2025] HKCFI 2455

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 667 OF 2025

(ON APPEAL FROM HCAL NO. 2754 OF 2019)

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JUDGMENT

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Hon Chu VP (giving the Judgment of the Court):

Introduction

1.  By a notice of appeal filed on 1 September 2025, the applicant seeks to appeal the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 26 August 2025 [2025] HKCFI 3681).  By the decision, the Judge refused to extend the time for the applicant to apply for judicial review and dismissed her application for leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”) dated 14 March 2016, which dismissed her appeal against the decision of the Director of Immigration (“the Director”) dated 22 April 2015 rejecting her non‑refoulement protection claim under the torture risk[1], BOR 3 risk^[2] and persecution risk^[3] grounds. 

2.  Despite directions given by the Registrar of Civil Appeal, the applicant has not lodged her appeal bundle.  On 14 November 2025, an Unless Order was issued directing the applicant to lodge the appeal bundle by 4:30 pm on 5 December 2025, failing which this appeal shall, without further order, stand dismissed.

3.  On 19 November 2025, the Director forwarded a letter dated 17 November 2025 from the applicant to the Director and informed the Court that proceedings to remove the applicant out of Hong Kong would be resumed as soon as practicable. In the applicant’s letter to the Director,  she stated that she wants to go back to her country as soon as possible and that it is safe for her to go back and she has no money to buy her flight ticket, and also requested to “cancel all [her] non-refoulement claims including appeal/JR (if any) in Hong Kong”. 

4.  In the circumstances, notwithstanding the Unless Order, we have proceeded to consider and deal with the appeal based on the papers before the Court.  

The decisions of the Director and the Board

5.  The applicant is a national of the Philippines aged 47.  She has since April 2008 overstayed in Hong Kong.  After her arrest by the police on 15 January 2014, she raised a non-refoulement claim based on fear of being harmed or killed by her creditor due to her inability to pay her debts.  Her claim was summarized by the Judge at [2] to [4] of the Form CALL-1.     

6.  By a Notice of Decision dated 22 April 2015, the Director rejected the applicant’s non-refoulement claim, having considered the torture risk, BOR 3 risk and persecution risk grounds. 

7.  The Board heard the applicant’s appeal against the Director’s decision on 24 December 2015.  By a decision given on 14 March 2016, the Board dismissed the appeal.  In gist, the Board doubted the credibility of the applicant and her case, and further considered that in any event her case did not satisfy the legal requirements of the applicable grounds.  The Board also found state protection and internal relocation alternatives reasonable available to the applicant.  

8.  By a further decision dated 7 February 2017, the Director also rejected the applicant’s claim on the BOR 2 risk^[4] ground. 

9.  The Board dealt with the applicant’s appeal against the Director’s further decision on the papers.  By its decision dated 20 August 2019, the Board dismissed the appeal finding that her claim did not engage the BOR2 risk ground.

The Judge’s decision

10.  On 19 September 2019, the applicant filed a Form 86 and an affirmation to seek leave to apply for judicial review in respect of the first decision of the Board dated 14 March 2016.  The application was more than three years late as Order 53 rule 4(1) of the Rules of the High Court, cap. 4A requires an application for leave to apply for judicial review to be made promptly and in any event within three months from the day when grounds for the application first arose. 

11.  The grounds for seeking relief put forward by the applicant were set out by the Judge in [11] of the Form CALL-1.  The Judge heard the application at an oral hearing on 24 July 2025.  By his decision set out in the Form CALL-1 dated 26 August 2025, the Judge refused to extend time for the applicant to apply for judicial review and dismissed her application for leave to apply for judicial review.  In brief, the Judge found there was no good reason for the very serious delay and the applicant’s intended judicial review had no prospect of success as her grounds were not reasonably arguable: see [14] to 19] of the Form CALL-1.      

This appeal

12.  The applicant appeals the Judge’s decision to this Court.  The grounds of appeal in the notice of appeal state that: (1) the Director failed to consider or give proper weight to the issue of state acquiescence; (2) the Director, the Board and the Judge failed to consider or sufficiently consider these arguments; (3) the Board failed to make sufficient enquiry before finalising its determination; (4) the Director displayed an unfair attitude in the use of the country of origin information (COI); and (5) the Director and the Board failed to note the gravity of the applicant’s circumstances and the applicant should be given an opportunity to properly plead her case.       

Our decision

13.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In sum, the role of the court in a judicial review is not to provide a further avenue of appeal. Assessment of evidence and Country of Origin Information materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), who are the primary decision makers.  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.  Further, an appeal to the Court of Appeal is not an avenue for the applicant to re-argue the case.  The Court of Appeal will not interfere with the first instance decision unless it is shown that the first instance judge has erred.

14.  We are of the view that the applicant’s grounds of appeal are unarguable. Importantly, they do not engage the reasons given by the Judge.  There is no challenge to the Judge’s finding that the serious delay was not explained.  As to the issue of state acquiescence, as pointed out by the Judge, it is no more than a vague and general assertion and it has not been shown how it relates to the facts of the applicant’s claim.  The complaint that the Board failed to make adequate enquiry has no merits given that the applicant had attended before the Board and was afforded the opportunity to present her case.  The applicant has also not identified what are the matters that the Board should have, but had failed, to enquire into.  The other complaints in the grounds of appeal are mere assertions unsupported by particulars and do not assist the applicant. 

15.  On the legal principles set out above, the appeal is devoid of merits.  Accordingly, we dismiss the appeal.