URBIZTONDO JOCELYN MARCOS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 688/2025, [2026] HKCA 1074

On Appeal From [2025] HKCFI 3637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 688 OF 2025

(ON APPEAL FROM HCAL NO 3481 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 Levy (“Judge”)  on 22 August 2025 dismissing the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 21 October 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 21 August 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines born in 1983 and her claim was made on the basis that if she returned to the Philippines, her creditor would harm or kill her due to an unpaid loan.  Upon being invited to submit additional facts, the applicant subsequently added that her husband would harm or kill her due to her getting pregnant with a Pakistani man in Hong Kong.

3.  Details of the applicant’s background, the basis of her claim and arguments advanced before the Board as well as the Board’s reasons for rejecting her appeal are all set out in the Board’s two decisions dated 24 December 2015 and 21 October 2019 respectively: see [1] of the Form CALL-1.  However, the subject matter of the applicant’s present application is the Board’s decision dated 21 October 2019, which assessed the applicant’s BOR2 risk[1]. The Judge has set out the grounds advanced by the applicant in support of the application and her reasons for refusal of the application: see [8] – [11] of the Form CALL-1.

Appeal to this Court

4.  On 4 September 2025, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were, essentially, that the Director failed to give weight to the presence of state acquiescence in the applicant’s case, that the Board failed to make sufficient inquiry before finalizing its determination, that the Board failed to arrange sufficient opportunity for the applicant to arrange relevant evidence, and that the Director referred to relevant country of origin information while stating other meanings suiting his preconceived conclusion.

5.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

6.  The applicant has not lodged any written submissions.

Discussion

7.  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.

8.  In the present case, the Board found that there was no real risk of harm upon refoulement under BOR2 risk as alleged, because her unpaid loan issue had been resolved, her fear stemming from her husband’s knowledge that she had a child with a Pakistani man was a bare assertion, and she had had no contact with her husband since 2010.  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.

9.  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.

10.  The applicant’s appeal is accordingly dismissed.