RE SERRANO MARINA CORSINO AND ANOTHER

CACV 356/2026, [2026] HKCA 1086

On Appeal From [2026] HKCFI 1727

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 356 OF 2026

(ON APPEAL FROM HCAL NO. 3731 OF 2019)

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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 appeal only concerns the 1^st applicant, who is appealing against the decision of Deputy High Court Judge Michael Wong (“the Judge”) given on 25 March 2026[1] refusing her application for leave to apply for judicial review against the decision dated 31 October 2019 of the Torture Claims Appeal Board (“the Board”).  By his decision, the Judge had granted leave to the 2^nd applicant, who is the 1^st applicant’s son, to apply for judicial review in respect of the Board’s decision.  The Board had by its decision dismissed the appeal of the 1^st and 2^nd applicants against the decision dated 31 December 2018 of the Director of Immigration (“the Director”) which in turn had rejected their 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 1^st applicant is a national of the Philippines born in 1977.  She last arrived in Hong Kong on 28 April 2017 and was permitted to remain to work as a foreign domestic helper.  After her employment was terminated on 6 December 2017, she did not depart and has since 21 December 2017 overstayed in Hong Kong. On 12 January 2018, she surrendered to the Immigration Department and lodged a non-refoulement claim.  On 6 April 2018, she gave birth to the 2^nd applicant.  On 24 July 2018, she lodged a non-refoulement claim on behalf of the 2^nd applicant, whose father (“Khan”) is an Indian Muslim and a non-refoulement claimant whom the applicant met in Hong Kong.  

3.  The claim put forward by the 1^st applicant for herself and the 2^nd applicant was on the basis that, if refouled to the Philippines, they would be harmed or killed by the 1^st applicant’s estranged husband (“Wilmar’) because she had given birth to the 2^nd applicant with another man.  She also feared of discrimination upon her return to the Philippines as she had converted to Muslim.  Details of the 1^st applicant’s claim and the Board’s reasons for rejecting her appeal were set out in the Board’s decision[6]. 

4.  The 1^st and 2^nd applicants were absent at the hearing of the appeal before the Board.  Despite being served with a notice, they did not provide any explanation for their absence. The Board therefore proceeded to determine their appeal without arranging another hearing.

5.  In its decision, the Board accepted that the applicant had separated from Wilmar and had not seen him since 2013, but did not accept that Wilmar knew about her son’s existence or had threatened to harm the applicants. The Board found the 1^st applicant’s evidence showed that Wilmar had already deserted her and would have no motive to harm her or her son.  The Board also found on the basis of the country-of-origin information (“COI”) that the Philippines government is able and willing to provide protection for single mothers and victims of domestic violence.  It also found that internal  relocation was reasonably viable in cities such as Manila which has a large population and a growing Muslim community. The Board thus concluded that the applicant failed to establish the requisite entitlement to protection under any of the applicable grounds.

6.  By a Form 86 filed on 16 December 2019, the applicants applied for leave to judicially review the Board’s decision.  No grounds for seeking relief were given in the Form 86 or the supporting affirmation.  An oral hearing was conducted on 26 February 2026 which was attended by both applicants.

7.  By a Form CALL-1 dated 25 March 2026, the Judge dismissed the 1^st applicant’s application for reasons given in [27] to [44].  In gist, the Judge held that her application had no realistic prospect of success as the Board had duly assessed her fear of harm from Wilmar as well as her fear of religious discrimination due to her conversion to Muslim. The Judge found the Board’s findings and assessment of risk to be rational and procedurally fair.  

Appeal to this Court

8.  On 8 April 2026, the applicant filed her Notice of Appeal against the Judge’s decision. She did not put forward any grounds of appeal other than stating that she was not satisfied with the Judge’s decision.

9.  The 1^st applicant has lodged written submissions which stated 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.

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

13.  We would first make some overall observations about the  numerous grounds and arguments raised by the 1^st 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. 

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

(1)     In the present case, the Board was not satisfied that the 1^st applicant had shown that Wilmar has knowledge of the 2^nd applicant’s existence or had threatened to kill him.  The Board also went further and considered that, even on the 1^st applicant’s evidence, Wilmar had long deserted her and there was no reason to think that he would care that the 1^st applicant had a relationship with another man and had given birth to the 2^nd applicant. The Board therefore took the view that Wilmar had no motive to harm her.  These are findings of fact properly open to the Board on the evidence and for the reasons it gave.  As her claimed fear or risk of harm is not substantiated, the 1^st applicant’s assertion that her human rights would be violated or she would encounter hardship cannot stand. 

(2)     It follows that the complaint that, notwithstanding the danger to her life, the Judge did not properly consider or analyse the 1^st applicant’s claim also falls away.  In any event, it is evident from the reasons he gave that the Judge had given due consideration to the 1^st applicant application and her intended judicial review.

(3)     Contrary to the 1^st applicant’s submission, the Board had considered a range of COI which supported its assessment that there were existing laws and support systems to protect single mothers and victims of domestic violence. As to the complaint that the COI was unofficial or hearsay, it is a general assertion without particulars.  The 1^st applicant has not identified which piece of COI is flawed and how it will materially affect the correctness of the Board’s assessment.

(4)     On the 1^st applicant’s own evidence, the claim is based on a private dispute with no state involvement. Her submission that the Board failed to consider whether there was a consistent pattern of gross and mass violation of human rights has no relevance.  Similarly, the assertion that her enemies are in control of the government is misplaced.

(5)     As to the complaint about lack of procedural fairness, the fact is the 1^st applicant did not attend the oral hearing and had given no explanation for her absence, despite being warned that failure to provide a written explanation for the absence would result in the Board proceeding to determine the appeal without a hearing.  Additionally, 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 detail reasons it gave.

(6)     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.

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

[1] [2026] HKCFI 1727

[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.