Sebastian Irene Lizardo v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 185/2025, [2025] HKCA 908

On Appeal From [2025] HKCFI 1291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 185 OF 2025

(ON APPEAL FROM HCAL NO. 1748 OF 2024)

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BETWEEN

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J U D G M E N T

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

1)  The appeal

1.This is an appeal by the applicant against the Judgment of Deputy High Court Judge To of 3 April 2025 in which he refused to grant leave to apply for judicial review out of time.

2)  Background

2.The applicant is a national of the Philippines.  She entered Hong Kong in January 2020 as a foreign domestic helper and was allowed to remain until 18 January 2022 or two weeks after termination of contract, whichever was earlier. In February 2021, her contract was prematurely terminated. The applicant’s application for extension was refused. She was arrested by the police on 7 September 2023. She lodged her non-refoulement claim by three written significations in September 2023[1]. 

3.The basis of the applicant’s claim is that she would be harmed or killed by her husband[2].

4.The background facts have been summarised in the Judgment at [6] to [11].

3)  The Director’s Decision

5.The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 4 December 2023.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk, Bill of Rights Article 2 (right to life)  risk as well as other statutory and convention rights against torture and persecution[3] (‘the Director’s Decision’).

4)  The Board’s Decision

6.The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board[4] (‘the Board’).  After a hearing held on 5 February 2024, the Board dismissed the applicant’s appeal on 15 February 2024 (‘the Board’s Decision’)[5].

7.The Board’s finding is summarised in the Judgment at [12] to [29].

5)  Decision of the Judge

8.The applicant filed her Form 86 and supporting affirmation in 4 October 2024[6]. The applicant did not provide any specific grounds for her judicial review application[7].

9.The Judge had doubts about whether he agreed with the Board that the applicant was incredible, and held that the Board’s categorisation of certain matters which it thought were inconsistencies were not inconsistencies but simply the Board’s findings. As for the inconsistencies in the applicant’s evidence which the Judge considered did exist, the Judge held that those inconsistencies could be explained, and did not justify the Board’s adverse comment about the reliability of the Applicant’s evidence.  The Judge held that considering the evidence in the round, the Board’s primary finding of the applicant’s incredibility and the rejection of her evidence about her husband’s threat was problematic and could not stand[8].  The Judge was disagreed with the four matters which the Board had considered to be suspicious, taking the view that those suspicions could be explained[9].

10.However, the Board went on to consider the position on the alternative basis that the threat claimed by the applicant was proved. The Board nevertheless held that the Applicant was not entitled to protection on the grounds of torture risk given that the risk arose out of a private domestic dispute in which the government was not involved. The Judge agreed with this conclusion of the Board[10].

11.The Judge held that regarding BOR 3 risk, the basis of the Board’s adverse finding rested on its finding of the applicant’s incredibility. As the Judge disagreed with the Board’s finding that the applicant was entirely incredible, the Judge also held that the Board’s finding in relation to BOR 3 risk was misplaced. The Judge further held that the Board may have taken into account irrelevant matters, such as factual circumstances before the applicant’s admission of adultery, in its assessment of risk of harm in holding that the minimum level of severity was not attained[11].

12.Despite the above, the Judge held that the “saving grace” of the Board’s decision was its finding that state protection was available in that the police had previously detained the husband twice successfully, and that internal relocation was possible[12]. The Judge further agreed with the Board that there was no BOR 2 risk nor persecution risk[13]. The Judge held that despite the Board’s errors as pointed out, he agreed with the Board’s conclusion that the appeal should be dismissed and the Director’s decision confirmed[14].

6)  Grounds of appeal

13.The applicant in the notice of appeal stated the following:

“I am disagree with the decision maker authorities. The discriminatory act of authorities towards non-refoulement claimants merely on the basis of quick disposed of non-refoulement cases is unacceptable and determined to the spirit of judicial system.”

14.In the applicant’s written submissions, the applicant stated the following in summary:

(1)  the applicant has sufficient interest in the subject matter[15];

(2)  the Director and the Adjudicator were wrong in their decision as it was Wednesbury unreasonable[16];

(3)  the applicant has right to life and she may be killed if deported[17];

(4)  the Director did not give weight to state acquiescence[18];

(5)  the Adjudicator placed too much reliance on country of origin information without taking the applicant’s personal background and experience into account. The Director failed to consider the fact that local police would not help the applicant[19];

(6)  this was a clean case of unfair attitude shown by the Director[20]; and

(7)  the Adjudicator’s decision was irrational[21].

15.At the hearing of the appeal, the applicant added that she sought to appeal to protect her child, as they would not be safe if they went back to the Philippines.

7)  Our view

16.We are of the view that the applicant’s appeal is without merit.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against the refusal to grant leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

17.It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.  None of the arguments or matters raised by the applicant shows that the Judge made any error of law.

18.We see no basis to disturb the Judgment.  Accordingly, the appeal is dismissed.

Applicant, unrepresented, appearing in person