RE PRESENTA JESSIECA CASTILLO

CACV 378/2026, [2026] HKCA 1090

On Appeal From [2026] HKCFI 1783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 378 OF 2026

(ON APPEAL FROM HCAL NO. 1364 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 30 March 2026[1] refusing her application for leave to apply for judicial review against the decision dated 24 November 2022 of the Torture Claims Appeal Board (“the Board”). The Board had dismissed her appeal against the decision dated 16 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 1979.   She last arrived in Hong Kong on 9 February 2012 to work as a foreign domestic helper.  After her employment contract was terminated on 26 April 2012, she did not depart and has overstayed since 11 May 2012.  On 23 February 2021, she surrendered to the Immigration Department and on the same day filed her non-refoulement claim. 

3.  The applicant was widowed.  She has two children with her late husband and a third child with her former live-in partner (“Aries”).  Her claim is based on her fear of being harmed or killed by Aries, who was physically violent towards her because she applied and eventually came to work in Hong Kong.  She claimed that Aries was furious on learning of her relationship with other men in Hong Kong and had threatened to kill her if she returned to the Philippines.  She feared that their daughter would be harmed by Aries when he was drunk and had asked her mother to take care of the daughter. She also feared harm from Aries’ brother who is a member of the New People’s Army (NPA), a communist rebel group in the Philippines.  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].   

4.  By a Form 86 filed on 30 November 2022, the applicant applied for leave to judicially review the Board’s decision.  She did not provide any grounds for seeking relief other than stating that her life would be in danger in the Philippines.  The Judge heard the application at an oral hearing held on 3 March 2026, during which the applicant informed the Judge that she had a pending medical operation to remove a lump in her breast.  

5.  By a Form CALL-1 dated 30 March 2026, the Judge refused the application.  In gist, the Judge considered that the Board had taken into account all the available evidence and applied the correct legal principles, and there was no legal error, procedural unfairness or irrationality in the Board’s decision.  As to the applicant’s oral submissions, the Judge held that the applicant’s personal circumstances were not relevant consideration and any significant change of circumstances or new information was not relevant to the intended review.  The Judge accordingly concluded that the intended judicial review was not reasonably arguable.  

Appeal to this Court

6.  On 10 April 2026, the applicant filed her Notice of Appeal against the Judge’s decision. The grounds of appeal stated that the court did not consider her judicial review application, and the Board did not give her a correct decision which was “full of wrong”.  

7.  The applicant has lodged written submissions which state the following:

(1)     High standards of fairness are required in the determination of a torture claim as life and limb are in jeopardy and the fundamental human right not to be subjected to torture is involved.  The court should therefore subject the decision to rigorous examination and anxious scrutiny, and afford an applicant every reasonable opportunity to establish his claim, citing Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

(2)     The Board had acted in a procedurally unfair manner without properly assessing her credibility.

(3)     In the case of a late filing of a notice of appeal to the Board, section 32ZT of the Immigration Ordinance Cap. 115 stipulates that the Board may take into account the statement of reasons in the application for late filing, the documentary evidence and any other relevant matters of fact within the knowledge of the Board. 

8.  The appeal was listed for hearing on 8 June 2026.  On 4 June 2026, the Director of Legal Aid faxed to the Court a memorandum giving notice of an application for legal aid made by the applicant.  The memorandum was filed on the day of the hearing.  Pursuant to section 15 of the Legal Aid Ordinance, Cap. 91 and regulation 7A of the Legal Aid Regulations, Cap. 91A, the proceedings in this appeal shall be stayed for 42 days.  At the hearing, we explained the position to the applicant. She then informed us that she had no objection to proceeding with the hearing of the appeal.  

9.  We note that as early as 10 April 2026, when she filed the appeal, the applicant already had notice of the hearing date.  She, however, only applied for legal aid in the week before the hearing.  She gave no explanation for the late application.  We also consider there will not be unfairness or prejudice to the applicant in proceeding with the hearing of the appeal, given that she has set out her grounds in the notice of appeal and has lodged a written submission in support of the appeal.  The applicant is also prepared to proceed with the hearing of the appeal and does not object to hearing the appeal as scheduled.  We are of the view that it is appropriate to lift the stay.  We had, accordingly, lifted the stay and proceeded to hear the appeal.     

10.  In respect of the appeal, the applicant indicated at the hearing that she had nothing further to add to her submissions.

Discussion

11.  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.

12.  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.

13.  In the present case, the Board considered the applicant’s claim to be barely credible and also that, even if there was some element of truth in the claim, it did not engage any of the applicable grounds for non-refoulement protection.  Principally, on the applicant’s evidence, her claimed fear arose six months after she overstayed in Hong Kong, and there was no firm evidence of threats from Aries and none since 2013, apart from a hearsay claim that he might harm her, which the Board refused to accept as compelling evidence of a serious threat. The Board also found that the applicant had access to effective state protection and that she could safely relocate within the Philippines given her background and work experience.  The Board further did not accept that Aries’ brother posed a threat because the claim was speculative at best with no supporting evidence. The Board did not believe that the NPA leadership would endorse its members targeting a private individual such as the applicant, having regard to the COI.   

14.  In this appeal, although the applicant complains about the Judge’s decision and also contends that the Board’s decision was wrong and procedurally unfair, she has provided no particulars.  The arguments advanced in her submissions are unarguable for the following reasons:

(1)     There is no basis for the complaint that the Judge did not consider her judicial review. Notwithstanding that the applicant did not put forward any ground to support her leave application, the Judge had scrutinised the Board’s decision and also considered her oral submissions.  The Judge had also given reasons for refusing the application.    

(2)     The submission that the Board acted in a procedurally unfair manner in not properly assessing the applicant’s credibility is not borne out by the facts in the case.  The Board considered the applicant’s claim was barely credible noting that she had provided no objective proof to support her assertion that Aries had made threats to harm her.  More importantly, the Board’s dismissal of the applicant’s appeal was primarily on the basis that even on the applicant’s evidence, she did not come to Hong Kong to seek protection and the alleged threats could not satisfy the requirements of the applicable grounds.  As found by the Judge, the Board had applied the correct legal principles and there was no legal error or irrationality or unfairness in its decision.  

(3)     In respect of the principles of law and cases cited in the written submissions, the applicant has not explained how they relate or apply to her case.

(4)     As to the submissions regarding late filing of notice of appeal to the Board and section 32ZT of the Immigration Ordinance, they have no relevance to the applicant as her appeal to the Board was not late.   

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

[1] [2026] HKCFI 1783

[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.