Montano Rhona Bocaling v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 1031/2025, [2026] HKCA 1271

On Appeal From [2025] HKCFI 5282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1031 OF 2025

(ON APPEAL FROM HCAL NO 1012 OF 2020)

________________________

BETWEEN

________________________

________________

J U D G M E N T

________________

Hon Chow JA (giving the Judgment of the Court):

1.This is the Applicant’s appeal against the order of Deputy High Court Judge Levy (“the Judge”) dated 12 November 2025 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 15 May 2020 (“the Board’s Decision”), whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 10 April 2019.

2.The Applicant alleges that, if refouled to the Philippines, she will be harmed or killed by people involved in the death of her husband, who was shot dead by unknown assailants while performing his duty as a traffic police officer on 18 July 2017[1]. She also says she is in fear of her father-in-law in the Philippines because she has given birth to an illegitimate child in Hong Kong[2].  The Applicant’s background, the basis of her claim, the findings of the Board and its reasons for dismissing her appeal against the Director’s decision have been set out in detail in the Board’s Decision referred to by the Judge in her decision (see §1 of the CALL-1 Form).  We do not propose to repeat them here.

3.The Judge’s reasons for dismissing the Applicant’s leave application are set out at §§5-8 of the CALL-1 Form.  In gist, the Judge held that the Applicant had failed to identify any intended grounds of review for her application, and her intended challenge against the Board’s Decision was not reasonably arguable.

THIS APPEAL

4.In her Notice of Appeal filed on 17 November 2025, the Applicant states that she does not agree with the decisions made by the authorities because they relied on “some web news which [is] officially not recognized”, and they failed to properly investigate her claim.  She asserts that her case was not determined fairly.

5.In her written submissions lodged on 11 June 2026, the Applicant complains about the lack of legal and language assistance. She alleges that the Board’s Decision was unreasonable or irrational in the public law sense and was a result of procedural errors or unfairness.  She also alleges that the authorities acted in a discriminatory manner towards non-refoulement claimants.

6.At the hearing of the appeal, the Applicant says that her child has a Hong Kong identify card and is a Hong Kong resident, and she wishes her child could finish his education in Hong Kong.

DISCUSSION

7.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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.  The Court of Appeal’s role is not to examine the Board or Director’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524,at §14(6)).

8.Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. 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: Re Kartini [2019] HKCA 1022, at §13.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

9.The matters raised in the Applicant’s Notice of Appeal and written submissions are new points which were not raised in her application below.  No good ground has been shown which would justify allowing the Applicant to raise them for the first time in the Court of Appeal.

10.In any event, the Applicant’s complaint about the lack of legal and language assistance has no merit.  The court has repeatedly held that a non-refoulement claimant is not entitled to legal representation or language assistance at all stages of the proceedings in relation to the assessment or determination of a non-refoulement claim.  In the present case, the Applicant was assisted by the Duty Lawyer Service in relation to the assessment of her non-refoulement claim by the Director, and plainly had legal and language assistance at that stage.  The Form 86 and the supporting affirmation filed in the court below, as well as her Notice of Appeal and written submissions filed with this Court are all written in English.  This indicates that the Applicant is either conversant with English, or has access to language assistance as needed.  Further, the Applicant has failed to show that she was inhibited from advancing any particular point or ground before the Board or the Judge. 

11.The other complaints raised by the Applicant are all general assertions without particulars, and are mostly directed at the decisions of the Director and the Board.  They do not constitute any valid grounds of appeal against the Judge’s decision.

12.The Applicant has failed to raise any viable ground of appeal against the Order. 

13.The Applicant’s appeal has no merit, and is dismissed.

The Applicant, appearing in person