MARTICIO MELCRIS ANDOY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 251 /2025, [2025] HKCA 973

On appeal from [2025] HKCFI 1688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 251 OF 2025

(ON APPEAL FROM HCAL NO 127 OF 2020)

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J U D G M E N T

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

Background

1.  On 25 April 2025, Deputy High Court Judge Martin Wong refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”)  concerning her non-refoulement claim[1]. The applicant filed a Notice of Appeal against the decision on 30 April 2025.

2.  The applicant is a national of the Philippines.  She last entered Hong Kong to work as a foreign domestic helper on 1 May 2011.  Her employment contract was prematurely terminated on 16 January 2012.  She did not leave Hong Kong and subsequently overstayed.  She was arrested by the police on 16 May 2012.  She lodged her torture claim on 7 June 2012 which was withdrawn on 11 September 2012.  She requested to re-open her claim on 4 December 2012 and her request was allowed on 12 November 2013.  Her claim was treated as a non-refoulement claim after the commencement of the unified screening mechanism.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband.

3.  By a Notice of Decision dated 10 November 2015, the Director of Immigration (“the Director”)  rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 3 risk[3] and persecution risk[4]. 

4.  She lodged an appeal with the Board and attended the hearing before the Board on 27 May 2016.  The Board has serious doubt on the applicant’s credibility about her account of experience in the Philippines and her fear of harm from her husband because of the glaring inconsistencies in her evidence.  The Board also found that the alleged injuries did not attain the requisite minimum level of severity which warrants non-refoulement protection.  The Board found that the applicant’s husband has no intention to carry out his threats and assessed the likelihood that he would harm her seriously when he meets her in the Philippines as very low.  The Board took the view that state protection would be available to the applicant in the Philippines.  The Board concluded that the applicant has failed to demonstrate her alleged risk of harm that warrants non-refoulement protection in Hong Kong and dismissed the appeal on 17 March 2017.

5.  By a Notice of Further Decision dated 28 April 2017, the Director rejected the applicant’s claim on BOR 2 risk[5].

6.  She lodged an appeal with the Board and attended the hearing before the Board on 18 September 2019.  The Board decided to maintain the finding that the applicant’s claim of fear is not credible as she has not advanced any arguments or explanation in respect of the doubt on her credibility in the previous decision.  The Board assessed the risk of serious harm that the applicant may face on her return as very low.  It found that it would not be unduly harsh for the applicant to relocate to places outside her home village and reasonable state protection would be available to her in the Philippines.  The Board therefore concluded that the applicant has failed to establish that her inalienable right to life is at risk of being deprived or derogated and affirmed the further decision of the Director on 3 January 2020.

The judge’s decision

7.  The applicant filed a Form 86 and an affirmation on 13 January 2020 to seek leave to apply for judicial review against the decision of the Board dated 3 January 2020.  She stated the following grounds for her intended challenge:

(1)  Procedural impropriety: the Board failed to consider her fear that she would face real risk upon refoulement to her country and to consider her claim under BOR 2 risk;

(2)  Error/misdirection in law: the Board failed to make a proper inquiry and gave its decision based on paper review.

8.  The leave application was heard before DHCJ Martin Wong on 20 March 2025.  The judge found the applicant’s complaint factually wrong.  Her appeal to the Board was not disposed of on paper and she did attend an oral hearing before the Board.  The judge further found no error of law, procedural unfairness or irrationality in the Board’s decision.  Thus, the leave application was dismissed on 25 April 2025.

Grounds of appeal

9.  The applicant stated the following grounds of appeal in the Notice of Appeal filed on 30 April 2025:

(1)  Error in law: the court misapplied the legal principles related to non-refoulement protection including Article 3 of the Hong Kong Bill of Rights and Article 33 of the 1951 Refugees Convention;

(2)  Error in fact: the court failed to properly assess the risk of persecution or harm the applicant may face if she returns to her country.  The court overlooked the key documents, witness or expert report;

(3)  The court did not properly apply the Hong Kong obligation under international human rights law including the Convention against Torture and the International Covenant on Civil and Political Rights.

10.  She stated the following contentions in her written submissions:

(1)  Her life is still in danger or her fear still continues upon refoulement to her country;

(2)  The decision makers failed to take into account and/or give proper weight to relevant considerations and materials.  They did not follow high standard of fairness to provide opportunity for the applicant’s claim.  They did not inquire about her fear that her enemies are still a threat.  The country of origin information shows that authority of her country would not be able to or has no intention to protect her from her enemies;

(3)  The applicant has a son who was born in Hong Kong (not by her husband)  and she cannot bring him to her country where she would face a risk upon refoulement.

Legal principles

11.  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.

12.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  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.

13.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

14.  The applicant’s contention concerning her son who was born in Hong Kong cannot assist her case as it has nothing to do with her own rights under the Hong Kong Bill of Rights.  Besides, this was raised at the hearing before the Board on 18 September 2019 and the Board found assistance and wide-ranging benefits are available to the applicant in the Philippines from the state as a single parent with a child to support.  As for her other grounds and submissions, they are just bare assertions without sufficient particulars or evidence in support.  She also failed to identify any particular error in the judge’s decision. 

15.  We therefore find the appeal devoid of merits and dismiss it accordingly.