RE ARCARTE JOVENEY BRUAN

CACV 803/2025, [2026] HKCA 1216

On Appeal From [2025] HKCFI 2823

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 803 OF 2025

(ON APPEAL FROM HCAL NO. 3202 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):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”)  given on 19 September 2025[1] refusing her application for leave to apply for judicial review against the decision dated 19 September 2019 of the Torture Claims Appeal Board (“the Board”). The Board had dismissed her appeal against the decision dated 21 December 2018 of the Director of Immigration (“the Director”)  which in turn had rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2[5] risk grounds.

2.  The applicant has consented to her appeal being determined on paper without an oral hearing.  She had lodged a written submission to support her appeal.

Background

3.  The applicant is a national of the Philippines born in 1972.   She first came to Hong Kong to work as a foreign domestic worker in 1997.  She last arrived in Hong Kong on 4 December 2010.  After her employment contract was terminated on 31 October 2011 and her extension of stay expired on 14 November 2011, she did not depart and has since overstayed. She surrendered to the Immigration Department on 9 August 2018 and later lodged a non-refoulement claim.  

4.  Her claim was on the basis that if she returned to the Philippines, she would be harmed or killed by her husband (“Jerry”).  According to the applicant, she married in 1993 when she was 21. She did not get along with her husband who regularly subjected her to physical violence.  After their son was born, she came to Hong Kong to work as a domestic helper to support the family.  In 2000, when Jerry found out she had returned to Hong Kong after a short holiday in the Philippines, he was furious.  He sent threatening messages to her, threatened her father with a gun, and telephoned her employer demanding that the employment contract be terminated.  In 2001, the applicant developed a relationship with a man in Hong Kong with whom she has two children born in 2003 and 2005. When Jerry discovered the relationship and the applicant’s pregnancies, he threatened to kill her and the children, and also made threatening calls to her employer. 

5.  The applicant had also made non-refoulement protection claims on behalf of her two children on the basis of risks of harm from Jerry. The applicant’s and her children’s claims were refused by the Director and their appeals to the Board were dismissed.  Details of the applicant’s background, the basis of her claim and the Board’s reasons for rejecting her appeal were set out in the Board’s decision[6].

6.  By a Form 86 filed on 28 October 2019, the applicant applied for leave to judicially review the Board’s decision.  Her two children were not included in the application.  The applicant’s grounds for seeking relief stated that the Board’s decision was Wednesbury unreasonable in that the assessment of risk of harm, availability of state protection and viability of internal relocation was unreasonable and unfair.  The applicant also stated in the supporting affidavit that she was tortured mentally, she escaped to Hong Kong to avoid being physically and mentally tortured, and her problem still existed.

7.  The Judge heard the application at two hearings held on 30 May and 25 July 2025.  By a Form CALL-1 dated 19 September 2025, the Judge refused her application.  The Judge held that the intended judicial review was not reasonably arguable as the grounds advanced by the applicant were general assertions not supported by evidence and do not constitute viable grounds to challenge the Board’s decision.

Appeal to this Court

8.  On 29 September 2025, the applicant filed a Notice of Appeal to appeal the Judge’s decision. The grounds of appeal stated that the applicant’s life was still dangerous in her home country.

9.  The written submissions outlined the applicant’s immigration history and her reasons for seeking non-refoulement protection, and reiterated that she could not return to her home country because her life is still in danger there.

Discussion

10.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

11.  Further, it is well-established that 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 as they are primary decision makers. The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

12.  In the present case, the Board for the reasons set out in [24] to [48] of its decision, had concerns about the truth of elements of the applicant’s evidence. The Board pointed out that the applicant’s evidence, taken at its best, showed that she did not have any direct contact with Jerry since 2007 or 2008 and he had since 2018 stopped approaching her father.  The Board considered that the domestic relationship between the applicant and Jerry had ended in 1997 when she left the Philippines to work in Hong Kong. The Board did not accept that Jerry had made contact with her or made threats to harm her since her return to Hong Kong in 2000.  In the alternative, the Board found the applicant could safely and without undue hardship relocate to Mania.  These are findings of fact properly open to the Board based on the evidence it received and for the reasons it gave. 

13.  In her application made to the Judge, the applicant complained that the Board’s decision was irrational in the assessment of risk of harm, availability of state protection and internal relocation. However, she did not provide any particulars, or identified in what way the assessment and findings were flawed.  

14.  In this appeal, the primary ground of appeal is that the applicant cannot return to her home country because the danger to her life still exists.  Given the Board’s findings summarised above, this is not viable.

15.  We are satisfied that the intended judicial review has no prospect of success, and the Judge did not err in refusing leave to apply for judicial review.  Accordingly, we dismiss the appeal.