YARANON MA SHEILA ELPA AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 166/2025, [2026] HKCA 128

On Appeal From [2025] HKCFI 742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 166 OF 2025

(ON APPEAL FROM HCAL NO. 2234 OF 2019)

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J U D G M E N T

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Hon Anthony Chan JA (giving the Judgment of the Court):

1.  This is the Applicants’ appeal against the order (“Dismissal Order”) of Deputy High Court Judge K.W. Lung (“Judge”) dated 18 March 2025 by which their application for leave to apply for judicial review (“Leave Application”) against the decision of the Torture Claims Appeal Board (“Board”) dated 16 May 2019 (“Board’s Decision”) was dismissed. By that decision, the Board upheld the decision of the Director of Immigration (“Director”) to reject the Applicants’ non-refoulement claims.

2.  The Applicants are nationals of the Philippines. The 2^nd Applicant is the 1^st Applicant’s minor son, who was born in Hong Kong. The basis of their non-refoulement claims had been set out in detail in the Board’s Decision, which was summarized in the Judgment below (“Judgment”). In gist, the Applicants claim that if they return to the Philippines they would be harmed by the 1^st Applicant’s husband or her family because the 2^nd Applicant was born out of wedlock to another man.

3.  In [15] to [18] of the Judgment, the Judge gave detailed reasons for refusing the Leave Application.

4.  By a Notice of Appeal filed on 1 April 2025, the Applicants appeal against the Dismissal Order. The Notice of Appeal contains no ground of appeal, save for an assertion that the Applicants will be in danger if they go back to Philippines. The Applicants lodged their written submission on 29 August 2025. In summary, the Applicant reiterated the factual basis of their claims, without raising any specific grounds of appeal.

5.  Pursuant to the directions given by the Registrar of Civil Appeals on 18 August 2025, this appeal has been referred to this Court to be disposed of on paper without an oral hearing, and we consider it appropriate to do so.

6.  The general approach of this Court in dealing with appeals in non-refoulement cases has been set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, this Court 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. This Court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

7.  Further, the assessment 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. The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022 at [13].

8.  The Applicants have not raised any specific grounds of appeal. Nevertheless, in view of the fact that the 2^nd Applicant is a minor, we have considered whether there were any relevant matters which should have been but were not taken into account by the Board.  The Applicants were legally represented in the proceedings before the Board. The Board accepted the 1^st Applicant’s evidence, but rejected the claims due to additional facts arising from her testimony before the Board, which indicated that over time the 1^st Applicant’s family members seemed to have changed their minds and become willing to accept her and the 2^nd Applicant. The Board also noted that the 1^st Applicant’s husband had avoided contact with her. Based on the evidence, the Board found that there was no real risk of harm from the 1^st Applicant’s family or husband. We see no error in the Board’s finding.

9.  The Board also considered and acknowledged the potential for stigmatization and societal discrimination against the Applicants due to the 2^nd Applicant’s birth out of wedlock, but based on available COI the Board was not persuaded that such stigmatization and discrimination would reach a minimum level of severity so as to constitute a real risk of harm. We can see no other minor-specific risk factors which had not been considered by the Board. The Board’s Decision complied with the principles in Fabio Arlyn Timogan and Ors v Adjudicator of the Board [2020] HKCA 971. We are unable to see any merit in the appeal.

10.  In the premises, the appeal is dismissed with no order as to costs.