RE SANTOS ARLEN VOLUNTAD

CACV 397/2026, [2026] HKCA 1091

On Appeal From [2026] HKCFI 1747

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 397 OF 2026

(ON APPEAL FROM HCAL NO. 718 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) Bonnie Cheng (“the Judge”) given on 8 April 2026[1] refusing her application for leave to apply for judicial review against the decision dated 31 May 2022 of the Torture Claims Appeal Board (“the Board”). The Board had dismissed her appeal against the decision dated 15 July 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 Philippines born in 1973.  She last arrived in Hong Kong on 15 December 2016 and was given permission to remain to work as a foreign domestic helper.  After her employment contract ended, she did not depart and has since overstayed.  On 24 May 2021, she surrendered to the Immigration Department and raised a non-refoulement claim.  Her claim is based on her fear of being harmed or killed by the associates of a deceased drug dealer (“Val”), who had supplied drugs to her brother-in-law for sale.  The applicant claimed that her brother-in-law had spent money belonging to Val and falsely accused her of misappropriating the money.  Details of the applicant’s claim and the Board’s reasons for rejecting her appeal were set out in the Board’s decision[6].

3.  In gist, the Board noted that, according to the applicant, Val died in 2016[7], she has never heard from anyone about the money alleged to be taken by her, and she knew nothing about the identity of Val’s associates.  The Board was of the view that the applicant’s claimed fear of being pursued and harmed by these people was pure speculation, having regard to her own account of the threats made by Val, her lack of knowledge of the identity or activities of the group since Val’s death, and the long lapse of time.  The Board found no credible basis for the applicant’s claimed belief that her safety or her life was at serious risk, and the requirements of the applicable grounds were not satisfied.

4.  By a Form 86 filed on 4 August 2022, the applicant applied for leave to judicially review the Board’s decision.  She provided no grounds for seeking relief.  The Judge dealt with the application on the papers.  By a Form CALL-1 dated 8 April 2026, the Judge refused the application finding that the intended judicial review is not reasonably arguable.  In summary, the Judge was satisfied that the Board had assessed the evidence in detail, given adequate reasons for its findings and there was no legal error, procedural unfairness or irrationality in its decision.

Appeal to this Court

5.  On 20 April 2026, the applicant filed a Notice of Appeal to appeal the Judge’s decision.  The grounds of appeal stated that the applicant’s claim was not properly investigated or determined fairly.  

6.  The applicant has lodged written submissions which stated that: that: (1) the Judge failed to apply the principle of irrationality when the Board had failed to evaluate and find whether there was a consistent pattern of gross and mass violation of human right in the Philippines, and also failed to assess whether state protection existed in the Philippines; (2) the Judge failed to apply the principle of procedural fairness which required the Director and the Board to give reasons for their decisions, when the Board had failed to give the applicant sufficient opportunity to arrange relevant evidence; (3) the Judge did not analyse the applicant’s claim properly despite her problem was severe and all the proof for her claim had been submitted; (4)  the Judge failed to apply the high standard of fairness when the decision has the effect of finally disposing of the applicant’s claim, which involved the applicant’s fundamental human right of not to be subject to torture; (5) the Board significantly relied on sources of news that were not officially recognized or were simply hearsay; and (6) the applicant would face hardship and death in her home country as her enemies are now controlling the government and they are still looking for her.

7.  At the hearing, the applicant indicated that she had nothing to add to her written submissions.

Discussion

8.  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.

9.  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.

10.  We would first make some overall observations about the numerous grounds and arguments raised by the applicant in this appeal.  Firstly, none of them had been raised in the application before the Judge.  It is established law that it is not open to an appellant to rely on grounds that were not argued in the court below, especially when they are fact-sensitive: Flywin Co. Limited v Strong & Associates Limited (2002) 5 HKCFAR 356 at [37]-[39].  Secondly, they are mostly general assertions that bear no relevance to the facts of the claim or are not borne out by the circumstances of the case.  Thirdly, they do not engage with the reasons of the Judge in refusing her application and are also not related to the Board’s reasons for dismissing her appeal against the Director’s decision. 

11.  In any event, they are unarguable for the following reasons:

(1)     In the present case, the Board found that, even on the applicant’s account, there was no credible basis for the claimed fear of harm from Val’s associates in that her assertions that they would pursue and harm her were pure speculations.  These are findings properly open to the Board in light of the applicant’s evidence and for the reasons given by the Board.  Given the Board’s findings that her claimed fear of harm was not substantiated, the assertion that the applicant would face risk of harm or would encounter hardship or that her human rights would be violated cannot stand.

(2)     It also follows that the complaint that, notwithstanding the danger to her life, the Judge did not properly consider or analyse the applicant’s claim must fall away.  In any event, it is evident from the reasons she gave that the Judge had given due consideration to the applicant application and her intended judicial review.

(3)     The complaints about the use of COI are misplaced as the Board did not rely on any COI in assessing the applicant’s claim.  The Board only observed (at [37] of its decision) that the COI in the document bundle did not support a claim that the applicant would be in danger of being subjected to torture if she returned to the Philippines.

(4)     On the applicant’s own evidence, the claim is based on a private dispute with no state involvement.  The submission that the Board failed to consider whether there was a consistent pattern of gross and mass violation of human rights has no relevance and is not supported by the evidence.  Similarly, the assertion that her enemies are in control of the government is also not relevant.

(5)     There is no basis for the complaint that the applicant was not given sufficient opportunity to arrange relevant evidence. The applicant confirmed at the hearing before the Board that she did not wish to correct or alter the documents before the Board.  Further, she had never made any request to the Board or to the Judge to submit additional evidence to support her claim.  There is also no basis to say that the duty to give reasons was not met by the Board in light of the detailed reasons it gave.

(6)     As to the complaint that the Board did not assess whether state protection existed in the applicant’s home country, given the Board’s finding that the claimed fear of harm from Val’s associates was pure speculation, it was not necessary for the Board to assess the availability of state protection.  After all, it was the applicant’s evidence that she knew nothing about her perpetrators, including whether or not they were still alive or active in her area. 

(7)     The complaint that the Judge failed to apply the high standard of fairness has no relevance since it is not the Judge’s role in judicial review proceedings to consider the applicant’s claim afresh.

12.  For the above reasons, the applicant’s appeal has no merits.  Accordingly, we dismiss the appeal.

[1] [2026] HKCFI 1747

[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.

[7] The applicant’s evidence before the Board was that Val died in 2016: see [20] and [30] of the Board’s decision. However, in her statement attached to the Non-refoulement Claim Form, the applicant stated that Val died in 2019: see [12] of the Board’s decision.