RE CALAPIS LEVY ABROGUENA

CACV 369/2026, [2026] HKCA 1088

On Appeal From [2026] HKCFI 1724

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 369 OF 2026

(ON APPEAL FROM HCAL NO. 585 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) Calvin Cheuk (“the Judge”) given on 30 March 2026[1] refusing her application for leave to apply for judicial review against the decision dated 20 April 2022 of the Torture Claims Appeal Board (“the Board”). The Board had dismissed her appeal against the decision dated 2 September 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 1981.   She last arrived in Hong Kong on 1 February 2021 and was permitted to remain to work as a foreign domestic helper. After her employment contract was terminated on 3 May 2021, she did not depart and has overstayed.  On 16 June 2021, she surrendered to the Immigration Department. She lodged a non-refoulement claim on the basis that if she returned to the Philippines, she would be harmed or killed by her estranged husband (“Eduardo”), who had no stable job and had physically assaulted her on two occasions in 2007 and 2013.  In 2018, Eduardo converted to Islam, married his girlfriend and has a daughter with her. The applicant feared harm from Eduardo because he had threatened to kill her if she returned to the Philippines.  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.  By a Form 86 filed on 7 July 2022, the applicant applied for leave to judicially review the Board’s decision. She did not provide any grounds for seeking relief in the Form 86 or the supporting affidavit.  The Judge heard the application at an oral hearing on 5 February 2026, during which the applicant indicated she had nothing to add to the application. 

4.  By a Form CALL-1 dated 30 March 2026, the Judge refused her application.  In gist, the Judge noted that the applicant did not put forward any substantive grounds to support her application.  The Judge was not satisfied that the intended judicial review was reasonably arguable with realistic prospects of success in that the Board had carefully considered the applicant’s evidence, its decision was comprehensive and adequately supported by the reasons it gave, and there was no legal error, procedural unfairness or irrationality in its reasoning.

Appeal to this Court

5.  On 9 April 2026, the applicant filed her Notice of Appeal against the Judge’s decision.  The grounds of appeal stated that while the Judge did not find any error, she could show there were many errors and asked for a chance to show the errors.

6.  The applicant has lodged written submissions which primarily repeated the factual basis of her claim.  It complained that the Board did not give her a chance to speak about her problems and the court failed to find there were problems in the Board’s decision. It requested the Court to grant her leave to appeal because she believed that Hong Kong is a better place to live.

7.  At the hearing, the applicant stated that she had nothing further to add to her 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.  In the present case, the Board accepted that the applicant had a difficult relationship with her husband and was physically assaulted by him.  However, the Board was not satisfied that there was a real risk that she would be pursued or harmed by him, finding that he was unlikely to have any continuing interest in the applicant or to harm her as their marriage has effectively broken down and they are not likely to reconcile or live together again.   Further, the two incidents of assault occurred five years apart over a lengthy marriage, which suggested there was no pattern of violence or intention on her husband’s part to cause her harm.  The Board thus concluded that the applicant failed to satisfy the requisite threshold entitling her to protection under any of the applicable grounds.  These are findings of fact open to the Board based on the evidence in the case and for the reasons it gave.  

11.  In this appeal, the applicant has only raised one substantive ground, namely the Board did not give her a chance to speak about her problems.  The Board had not arranged for an oral hearing of the applicant’s appeal.  In its decision, the Board pointed out that there was no absolute right to an oral hearing.  The Board was satisfied that the appeal could be justly determined without conducting an oral hearing, having regard to the relevant principles and the circumstances of the applicant’s case, including the fact that she had already submitted her written claims and submissions, and limited details of her claims were provided in her notice of appeal/petition before the Board. The applicant has not indicated what further matter or argument she would have put forward to support her claim if a hearing was held before the Board, or how they would affect the Board’s assessment.  There is no merit in this ground.  

12.  As to the submissions that Hong Kong is a better place to live and the applicant’s request not to be refouled to the Philippines, they are not viable grounds of appeal.  

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

[1] [2026] HKCFI 1724

[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.