RE ELVAMBUENA MAUREEN BERGONIO

CACV 377/2026, [2026] HKCA 1115

On Appeal From [2026] HKCFI 1796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 377 OF 2026

(ON APPEAL FROM HCAL NO. 1349 OF 2022)

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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 (Non-Refoulement Claims) Jeffrey Chau (“the Judge”) given on 31 March 2026[1] refusing her application for leave to apply for judicial review against the decision dated 14 November 2022 of the Torture Claims Appeal Board (“the Board”). The Board had dismissed her appeal against the decision dated 30 December 2021 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.

Background

2.  The applicant is a national of the Philippines born in 1991.   She last arrived in Hong Kong on 5 November 2019 and was given permission to remain to work as a foreign domestic helper.  After her employment contract was terminated on 28 September 2020 and her extension of stay expired 5 November 2020, she did not depart and has since overstayed. She surrendered to the Immigration Department on 25 January 2021 and lodged a non-refoulement claim on 23 February 2021.  Her claim was on the basis that if she returned to the Philippines, she would be harmed or killed by her ex-boyfriend (“Robert”) who accused her of cheating on him.  According to the applicant, she met Robert in 2016 and was pregnant with his child the following year.  He left her on the day she told him about the pregnancy. She later found out he was married with two children while at the same time was having an affair with another woman.  In late December 2017, the applicant developed a relationship with another man.   When Robert discovered the relationship, he assaulted the applicant and threatened to kill her.   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].

3.  By a Form 86 filed on 28 November 2022, the applicant applied for leave to judicially review the Board’s decision.  She did not provide any grounds for seeking relief.  The Judge heard the application at an oral hearing was held on 3 March 2026, during which the applicant stated that she had nothing further to add to her application.  By a Form CALL-1 dated 31 March 2026, the Judge refused her application.  In gist, the Judge held that the intended judicial review was not reasonably arguable as the Board had considered all the evidence and applied the correct legal principles, and no legal errors, irrationality or procedural unfairness could be identified.

Appeal to this Court

4.  On 10 April 2026, the applicant filed her Notice of Appeal against the Judge’s decision. The grounds of appeal are that she would face hardship if she returned to the Philippines and that the Board had relied on sources of news which were not officially recognised or were simply hearsay, and cases that were outdated cases, and consequently made groundless speculations about the applicant’s case.

5.  The appeal was listed for hearing on 8 June 2026.  Despite directions given by the Court, the applicant did not lodge any written submissions.  She was thus deemed to have waived her right to make submissions and the scheduled hearing was vacated pursuant to the directions of the Court.  We have therefore proceeded to determine the appeal on the basis of the available documents and materials.

Discussion

6.  In assessing the merits of the appeal, we 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.

7.  Further, it is well-established that assessments 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.

8.  In the present case, the Board found the applicant’s evidence not credible and unreliable, having regard to the multiple inconsistencies in her evidence that could not be reconciled with her written claims and also her actions which were incompatible with her claim of being in genuine fear for her safety.  The Board noted, for instance, that while her reason for going to Dubai was to avoid Robert, there was no evidence she had sought protection in Dubai, and she returned and stayed in the Philippines for ten months after her contract in Dubai finished in early 2019.  Similarly, although she intended to seek protection in Hong Kong, she did not do so until after her employment contract was terminated. The Board further assessed that state protection and internal relocation were reasonably available which would negate or reduce the risk of harm that she might face.  These were findings of fact properly open to the Board based on the evidence it received and for the reasons it gave.

9.  The primary ground of appeal is directed at the COI used by the Board.  The applicant has only made general assertions without providing any particulars.  She had not identified which piece of information relied on by the Board was incorrect or outdated, and/or how that would affect the Board’s assessment on each of the applicable grounds. She has not identified which piece of the COI was flawed and how that would materially affect the Board’s decision.  In any event, the Board’s dismissal of the applicant’s appeal was principally on the basis of her evidence, which was found to be incredible and unreliable.  The Board only referred to the COI when considering whether state protection and internal relocation were available.  It is strictly not necessary for the Board to consider or find on these issues.  In short, this ground has no merits.

10.  As to the ground that the applicant would face hardship if refouled, it is unarguable since the Board had rejected her evidence, including her claim that she feared harm from Robert.

11.  We are satisfied that the Judge had given proper and adequate reasons for his holding that the intended judicial review had no prospect of success.  There is no proper basis for us to disturb the Judge’s decision.  

12.  Accordingly, we dismiss the appeal.

[1] [2026] HKCFI 1796

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.