Miguel Elene Estolonio v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 531/2026, [2026] HKCA 1275

On Appeal From [2026] HKCFI 2581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 531 OF 2026

(ON APPEAL FROM HCAL NO 919 OF 2022)

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BETWEEN

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J U D G M E N T

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

1.This is the Applicant’s appeal against the order of Deputy High Court Judge (Non-refoulement Claims) Ken To (“the Judge”) dated 18 May 2026 (“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 29 August 2022 (“the Board’s Decision”), whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 June 2021.

2.The Applicant alleges that, if refouled to the Philippines, she will be harmed or killed by her abusive ex-boyfriend because she refuses to marry him[1]. 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 his 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 §§3-13 of the CALL-1 Form.  In gist, the Judge rejected all 6 intended grounds of review raised by the Applicant, and held that the Applicant’s intended judicial review had no realistic prospect of success.

THIS APPEAL

4.In her Notice of Appeal filed on 26 May 2026, the Applicant states the following:

“1. Procedural Impropriety – The Judgment was dismissed my judicial review and confirm the TCAB and the Director’s Decision was confirmed. The assessor completely failed to realised the fact I had raised in my claim.

2.  Error / misdirection in law – the assessor did not proper apply the law BOR 2 and BOR 3 risk and Torture risk in my claim that I will still face risk upon refoulement.” [sic]

5.In her written submissions lodged on 3 June 2026, the Applicant makes various general allegations against the decisions of the “Assessors”, “TCAB” and “Honourable judges”, including failing to take into account relevant considerations, taking into account irrelevant considerations, failing to properly follow the high standard of fairness or inquire into the fear that she would face upon refoulement, and failing to consider relevant country of origin information in assessing the risk of harm to her.  She contends that the Judge, the Board and/or the Director failed to observe her “fear” properly for the purpose of determining her claim for non-refoulement protection, and erred in (i) disbelieving her case which she says is credible and based on the real danger and continuing threat from her enemies in her home country, (ii) holding that state protection would be available to her and internal relocation would be a viable option, and (iii) failing to properly assess the evidence or materials relating to her case. 

6.At the hearing of the appeal, the Applicant said that she could not go back to the Philippines, and she was scared of doing so because she was pregnant and could not protect herself.

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’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 complaints raised in the Applicant’s Notice of Appeal and written submissions are all general allegations without particulars, and mostly concern matters that fall within the province of the Board and the Director.  They do not constitute valid grounds of appeal against the Judge’s decision.

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

11.The Applicant’s appeal has no merits, and is dismissed.

The Applicant, appearing in person