RE RUBIO EVELYN DELA TIERRA

CACV 640/2026, [2026] HKCA 1417

On appeal from [2026] HKCFI 3131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 640 OF 2026

(ON APPEAL FROM HCAL 158/2023)

-----------------------------------

-----------------------------------

___________________

J U D G M E N T

___________________

Hon Leung J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge (Non-refoulement Claims) Martin Wong (“the Judge”) dated 8 June 2026[1] (“the Leave Decision”) refusing to grant leave for the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 1 February 2023 (“the Board’s Decision”) whereby the applicant’s appeal against the decision of the Director of Immigration dated 26 October 2021 rejecting the applicant’s non-refoulement claim was dismissed.

2.  The applicant is a national of the Philippines.  Her background, basis of claim and the Board’s reasons were set out in the Board’s Decision[2] as well as the Leave Decision at [6].  They will not be repeated.

3.  The applicant was absent from the hearing for the leave application.  After considering the documents filed by the applicant, the Judge dismissed the application for the reasons stated at [7]-[13] of the Leave Decision. 

Appeal to this court

4.  In her Notice of Appeal dated 15 June 2026, the applicant stated:

“I am pleading to the Court of Appeal to review my application.  The Judgment reached unreasonable.”

5.  In her written submissions dated 22 July 2026, the applicant complained that the determinations of the Director of Immigration and the Board were unfair.  She raised several complaints against the Judge, including that he had failed to appreciate the significance of her claim, and that he aimed at quick disposal of her case without adhering to “a high standard of fairness”.  She also argued that she was prejudiced in the proceedings below due to the lack of legal and language assistance.

6.  We heard the appeal on 6 August 2026, at which the applicant appeared in person.  At the hearing, the applicant had nothing further to add to the matters already set out in the documents lodged with the Court.  

Discussion

7.  The principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, 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.  Assertions by the applicant of fear, if refouled, do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].

8.  The Court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review.  Nor is an appeal the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge, and the Court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the judge or was otherwise plainly wrong: Re Kartini [2019] HKCA 1022 at [13].

9.  The applicant has failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  The points advanced by the applicant were bare assertions unsupported by particulars or evidence.

10.  In the present case, the Board found that the applicant’s alleged past domestic abuse suffered at the hands of her husband (by reason of, among other things, dispute on his extra-marital affairs and monetary dispute) did not on the evidence meet the required threshold of a real and substantial risk of harm.  The Board took the view that in any event suitable options of internal relocation were available to the applicant in order to minimise any risk of harm.  These were factual findings open to the Board on the evidence, and were sufficiently canvassed and considered by the Judge in the Leave Decision at [7]-[13].  We see no basis to interfere.  

11.  The applicant has failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its decision, or how such decision could be said to be Wednesbury unreasonable.

12.  In particular, we are not persuaded by the applicant’s complaint about prejudice caused by her lack of legal representation.  As this Court has repeatedly held, it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant would be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Ahmed Syed Rafiq [2018] HKCA 178.

13.  We are equally not persuaded by the applicant’s complaint about the lack of language assistance.  Whether by herself or with the assistance of others, she was clearly able to lodge comprehensible English documents and submissions with the Court as well as in the processing of her claim below.

14.  As the applicant advanced no viable grounds of appeal against the Judge’s decision, and there is no merit in the appeal, we dismiss the appeal accordingly.