RE QUIROS ROWENA CABONILAS

CACV 7/2024, [2025] HKCA 513

On appeal from [2023] HKCFI 3362

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 7 OF 2024

(ON APPEAL FROM HCAL NO. 1532 OF 2023)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge To (“the Judge”)  given on 28 December 2023 ([2023] HKCFI 3362)  dismissing her application for leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”)  which dismissed her appeal against the decision of the Director of Immigration (“the Director”)  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 not lodged any written submission to support her appeal.  

3.  The applicant is a Filipina aged 51.  She last entered Hong Kong in June 2022 with permission to remain to work as a foreign domestic helper.  After her employment was prematurely terminated, she did not depart and has since overstayed. On 4 April 2023, she was arrested by the police.  She later raised a non-refoulement claim based on fear of being harmed or killed by her husband who has an extra-marital affair, while at the same time falsely accused the applicant of having a boyfriend in Hong Kong.  Her claim was set out in details by the Director in [6] of the Director’s decision and succinctly summarized by the Judge in [6] to [10] of the Form CALL-1. 

4.  In gist, the applicant claimed that in 2015 and 2016 because of the husband’s relationship with another woman and his false accusation, they had arguments during which her husband assaulted her and threatened to harm and kill her if she did not leave the Philippines to go to Hong Kong.  Owing to her fear for her husband, the applicant did not return to the Philippines when her work visa expired.  

5.  By a Notice of Decision dated 31 May 2023, the Director rejected the applicant’s non-refoulement claim, having considered the torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4]. 

6.  The applicant’s appeal against the Director’s decision was heard before the Board on 19 July 2023.  By a decision given on 31 July 2023, the Board dismissed the appeal.  In gist, the Board accepted the applicant’s evidence, including the husband’s attacks on her and her fear for him and his mistress who is associated with the police.  The Board, however, found no real risks of harm from the husband and his mistress because the mistress had never made any concrete threat and both the husband and his mistress had no reason to harm or target the applicant given her marriage was at an end and she had no face-to-face contact with the husband since 2016.  The Board also found the harm previously inflicted by the applicant’s husband did not meet the minimum level of severity.  The Board further found internal relocation alternatives were reasonably available which would reduce any risk of harm that the applicant might face.  The Board concluded that the applicant failed to establish her entitlement to non-refoulement protection under any of the applicable grounds.

7.  The applicant filed a Form 86 and an affirmation on 30 August 2023 to seek leave to judicially review against the decision of the Board.  They contain no grounds for seeking relief. 

8.  The Judge dealt with the leave application on paper.  By a Form CALL-1 dated 28 December 2023, he dismissed the application, holding that the intended judicial review had no prospect of success for the reasons given in [19] to [20] as follows: 

“19. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim wholly on the basis of her case as she asserted. It was on that basis that the Board found her feared ill-treatment from her husband and his girlfriend is unlikely to materialise; and even if it does, she could safely avoid the risks by internal relocation and it would not be unduly harsh to expect her to do so. Accordingly, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds. These are finding of facts and of the law.

20.  The Board assessed the Applicant’s claim on the factual case as she asserted. The Applicant could have no reason to complain about the Board’s finding of these primary facts. It was on that basis that the Board further found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds. This is a mixed finding of fact and of law. Insofar as it is a finding of fact, it is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. Accordingly, the Applicant’s application for leave to apply for judicial review is refused.”

9.  By a notice of appeal filed on 4 January 2024, the applicant sought to appeal the Judge’s decision to this court.  The ground of appeal in the notice of appeal stated that: (1)  the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the case, and the Board and the Court failed to take this argument into account; (2)  the Director pre-determined the claim and unfairly referred only to Country of Origin Information (COI)  that suited his conclusion; (3)  the Board failed to make sufficient enquiry before finalising the determination and stated that the applicant failed to advance credible evidence to prove the claim; and (4)  the gravity of the applicant’s case had not been weighed or considered by the Director and the Board.  

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 grounds put forward by the applicant do not amount to any viable ground of appeal:

(1)  The complaints against the Director are misplaced given that the applicant had appealed the Director’s decision to the Board.  In any event, the complaint about state acquiescence has no relevance because the applicant’s claim is based solely on fear of harm from her husband.  There is no evidence, and the applicant never asserts or complains about state acquiescence. 

(2)  The complaint about the use of COI lacks particulars.  It is not shown how that would affect the Board’s finding and decision. 

(3)  The complaint against the Board is also misplaced as the Board did not doubt the credibility of the applicant’s evidence. 

(4)  Importantly, the applicant fails to point to any specific error in the Judge’s decision.  Given that the applicant has provided no ground for her intended judicial review, the Judge’s refusal to give leave cannot be faulted.

12.  By a letter dated 13 May 2025 sent to the Court through the Immigration Department on 16 May 2025, the applicant informed the Court that she would like to withdraw this appeal.  

13.  In the circumstances and for the above reasons, we dismiss the appeal.