SORIANO RIZA ACOSTA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 30/2025, [2025] HKCA 784

On Appeal From [2025] HKCFI 134

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 30 OF 2025

(ON APPEAL FROM HCAL NO 2238 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”) on 21 January 2025[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 12 July 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 26 January 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines born in 1979.  She last entered Hong Kong to work as a foreign domestic helper.  However, the applicant’s employment contract was prematurely terminated on 27 January 2014, and she was only allowed to stay in Hong Kong until 10 February 2014 but she overstayed.  She subsequently surrendered to the Immigration Department on 16 March 2015 and lodged a non-refoulement claim on 13 April 2015.  The applicant’s claim was made on the basis that if she returned to the Philippines, her paternal uncle and his family members would harm or kill her due to their land dispute.  The factual background of the applicant’s claim was set out at [26] to [40] of the Board’s decision.

3.  By notice of decision dated 26 January 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against her.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 11 January 2019, during which the applicant gave evidence and answered questions from the Board.  The Board did not find the applicant’s evidence credible, because there was an accumulation of inconsistencies and areas of implausibility, where the claim did not stand or meet the minimum threshold of reasonable logic.  For example, the applicant claimed she and her brother were attacked and threatened “one time” by their uncle but later stated that her brother was assaulted “many times” by their uncle; that she only mentioned her uncle was rich but later stated that he was connected with “thugs”; that she said her uncle could pay others to find her in the Philippines but later stated that they could locate her through social media; and that the applicant claimed her death would help her uncle get the disputed land.

5.  The Board proceeded to consider the risk of harm faced by the applicant if she was refouled to the Philippines.  It found there was in fact no real risk of harm if the applicant returned to the Philippines, because the Board did not attach any credence to her evidence of the threats of harm.  Further, even on the applicant’s evidence, the risk of harm did not reach the requisite level of severity, the applicant and her family members did not suffer any harm, death or threats of death from the uncle, there was no state involvement, reasonable state protection would be available to her, and internal relocation to Manila or Cebu would be a viable option.

6.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to the Philippines.  By its written decision dated 12 July 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.  On 6 August 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  In the accompanying affirmation, the applicant stated that the Board’s decision was procedurally unfair due to the lack of legal and language assistance at different stages of her claim process, that the Director was wrong in his application of the country of origin information (“COI”) in its decision, that the Board failed to balance its assessment of COI to reach its decision, and that the hearing bundle was given to her just a few days before the scheduled hearing.

8.  The Judge considered the application on the basis of the documents and the applicant’s submissions made at the oral hearing held on 16 December 2024.  On 21 January 2025, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [16] to [21] of the Judgment as follows:

“ 16. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she did not mean that the Board was wrong. But she asked this Court to review the Board’s Decision.

18. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.’

19. Under paragraph 14, ground (1) fails because the Court of Appeal had ruled that this ground is not valid to challenge the Board’s Decision[1]. Ground (2) fails because she has not set out what right she referred to; ground (3) fails because the Court of Appeal has ruled that she was not entitled to free legal assistance all the time throughout the proceedings[2]. Grounds (4), (5) and (6) fail as these are her own bare assertions or opinions without any evidence in support.

20. The applicant has raised no valid ground to challenge the Board’s Decision.

21. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.”

Appeal to this Court

9.  On 21 January 2025, the applicant filed her Notice of Appeal against the Judge’s decision.  She did not state any grounds of appeal, aside from stating that she did not agree with the decision. 

10.  The applicant has lodged written submissions in which she states that her case has been determined unfairly, that there was a lack of legal and language assistance resulting in procedural unfairness, that the Board’s refusal of her appeal was unlawful fettering of its discretion, unreasonable and irrational, and that the authorities are discriminatory by quick disposal of non-refoulement claims.

11.  At the hearing, the applicant stated she had nothing to add.   We shall accordingly determine the appeal on the basis of the available documents and submissions of the applicant.

Discussion

12.  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, 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.

13.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it did not accept the applicant’s evidence and in any event the risk of harm did not reach the requisite level of severity, there was no state involvement, reasonable state protection would be available to her, and internal relocation to Manila or Cebu would be a viable option.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.

14.  As to the complaint about the lack of legal and language assistance, it has been repeatedly stated by the Court of Appeal that as a matter of law, it is not the case that a non-refoulement claimant is entitled to free legal representation at all stages of the process, and the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  We note that all the court documents filed in this appeal and in the court below were in English.  It is thus clear that either the applicant was herself conversant with the English language or she had access to language assistance of her own if she found it necessary.  Further, we note that the applicant was legally represented in the initial preparation of her case by the completion of the non-refoulement claim form and screening interview with the Director, which formed the basis of her present claim.  Thus, we do not find the non-availability of legal representation in the processes before the court to amount to any procedural unfairness.

15.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

16.  The applicant’s appeal is accordingly dismissed.

[1]  [2025] HKCFI 134.

[2]  This refers to the 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).

[3]  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.

[4]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[5]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).