RE ABUYEN ALONA DOMINGO

CACV 333 /2024, [2025] HKCA 63

On appeal from [2024] HKCFI 1905

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 333 OF 2024

(ON APPEAL FROM HCAL NO. 1704 OF 2019)

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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):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”)  given on 6 August 2024[1] dismissing her application for leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”)  dismissing her appeal against the decision of the Director of Immigration (“the Director”)  and rejecting her non-refoulement protection claim.

2.  The applicant has consented to the appeal being determined by the Court of Appeal on the papers.  She has lodged a written submission to support her appeal.

The applicant’s claim

3.  The applicant is a national of the Philippines aged 50.  She entered Hong Kong on 29 October 2015 and was given permission to remain to work as a foreign domestic helper.  After her employment contract was terminated in May 2016, she overstayed.  She surrendered to the Immigration Department on 6 July 2017.  She subsequently raised a non-refoulement claim based on fear of being harmed or killed by Kevin, the owner of an employment agency, because she had complained him to the authority for the irregularities over an employment contract that he had arranged for her in 2011.  Her claim was set out in details in the Director’s decision at [7].  It is not necessary to repeat it.  

The decisions of the Director and the Board

4.  By a Notice of Decision dated 11 October 2018, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. 

5.  The applicant’s appeal against the Director’s decision was heard before the Board on 12 April 2019.  By a decision given on 31 May 2019, the Board dismissed the appeal.  In gist, the Board had grave concerns over the credibility of the applicant’s claim and evidence, which was found to be self-conflicting and unreliable.  For this reason and having regard to the fact that she remained in the Philippines for four years after 2011 and her children have continued to reside in their family house, the Board did not accept the applicant’s claims that she faced an ongoing threat from Kevin or anyone else in her home country.  The Board concluded that the applicant failed to show she was entitled to non-refoulement protection on any of the applicable grounds.

The Judge’s decision

6.  The applicant filed a Form 86 and an affidavit on 20 June 2019 to seek leave to apply for judicial review against the decision of the Board.  The applicant did not provide any grounds for seeking relief. 

7.  The Judge dealt with the leave application on the papers.  By a Form CALL-1 dated 6 August 2024, he dismissed the application on the basis that, for the reasons given in [18] to [21], the applicant failed to show her intended judicial review enjoyed any realistic prospect of success. 

The appeal

8.  By a notice of appeal filed on 14 August 2024, the applicant sought to appeal the Judge’s decision to this court.  In the Grounds of Appeal attached to the notice of appeal, the applicant stated that (1)  she would be harmed or killed by Kevin if she returned to the Philippines; (2)  the justice system in the Philippines could not be trusted as the police are corrupt and the political dynamics are complex; (3)  the police and the government in her home country could not protect her from the illegal recruitment agencies and their operators who have extensive and powerful network; (4)  internal relocation is not a viable option as she does not have relatives or friends in other parts of the Philippines and she will have to live like a fugitive; and (5)  although she is not an important government official or famous dissident, her life should also be protected.  

9.  The content of the applicant’s written submissions is identical to Grounds of Appeal.  

Our reasons for decision

10.  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.

11.  We are of the view that the matters raised in the Grounds of Appeal and written submissions do not constitute viable grounds of appeal.  Importantly, the applicant has not pointed to any error in the Judge’s decision.  Further, the Board had rejected the applicant’s evidence and case in its entirety.  In the Form 86 and supporting affidavit, the applicant has not identified any error in the Board’s assessment of the evidence and finding of facts, or any irrationality or procedural irregularity in the Board’s decision.  In light of the Board’s findings, the applicant’s assertions that she will be in danger if she returns to her home country have no supporting foundation.  In the circumstances, the Judge’s decision to dismiss the application for leave to apply for judicial review cannot be faulted.  Further, in light of the Board’s rejection of the factual basis of her claim, the applicant’s grounds of appeal lacks foundation.

12.  For the above reasons, the applicant’s appeal is devoid of merits.  Accordingly, we dismiss the appeal.

13.  On 25 November 2024, the Director informed the Court that the applicant has been removed from Hong Kong to her home country.  We therefore direct that a copy of this judgment be served on the Director with a request that he uses his best endeavour to bring it to the notice of the applicant.