Mata Olivia G v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 844/2026, [2026] HKCA 1808

On appeal from [2026] HKCFI 4185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 844 OF 2026

(ON APPEAL FROM HCAL NO 447 OF 2023)

________________________

BETWEEN

________________________

_____________________

J U D G M E N T

_____________________

Hon Kwan VP (giving the Judgment of the Court):

Background

1.On 31 July 2026, Deputy High Court Judge Sabrina Ho refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement claim[1]. The applicant filed a Notice of Appeal against the said decision on 13 August 2026.

2.The applicant is a national of the Philippines.  She came to Hong Kong to work as a foreign domestic helper.  Her employment contract was prematurely terminated on 29 June 2003 and she subsequently overstayed.  She was arrested by the police on 25 September 2021 and referred to the Immigration Department on 28 September 2021.  She lodged her non-refoulement claim on the basis that she would be harmed or killed by her husband if she were to return to the Philippines. 

3.By a Notice of Decision dated 14 January 2022, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim.  Her appeal was dismissed by the Board on 16 March 2023[2]. For a summary of the Board’s decision, see §10 of the judge’s decision.

The judge’s decision

4.The applicant filed a Form 86 and an affirmation on 22 March 2023 to seek leave to apply for judicial review against the decision of the Board.  Her leave application was dismissed by the judge on 31 July 2026.

Grounds of appeal

5.In her Notice of Appeal filed on 13 August 2026, the applicant stated the following grounds of appeal:

(1)  Procedural impropriety: the Board and the Director failed to consider the fact she had raised in her claim, that her fear is genuine and her life will still be at risk upon refoulement to her country;

(2)  Failure to properly consider her claim under BOR 2 and BOR 3 risks.

6.She put forward further contentions in her written submissions which may be summarised as follows:

(1)  The Board and the Director failed to consider and/or give proper weight to the relevant materials and hence their decisions are illegal.  They did not inquire about her fear that her enemies are still a threat for her and the country-of-origin condition information clearly shows that the authority of her country of origin would not be able to protect her;

(2)  Although it is true that her country is vast with huge population, it does not mean that she would be safe to relocate to other places in her country at this stage;

(3)  Her claim is based on true story.  The decision maker did not observe her fear well but simply refused her claim;

(4)  Her claim is not a private and personal matter but the decision maker did not observe her fear properly;

(5)  The judge applied an incorrect test and treated credibility findings as conclusively determinative rather than part of a holistic risk assessment;

(6)  The judge relied on single credibility points, equating minor inconsistencies with the wholesale rejection of the risk evidence;

(7)  The Board acted outside the scope of the Immigration Ordinance/USM by misinterpreting statutory thresholds or applying incorrect legal test;

(8)  The decision-maker made an error of law by misdirecting on the legal standard (eg ‘real risk’ vs ‘substantial grounds’) or failing to apply the relevant international legal principles;

(9)  She was given inadequate opportunity to present evidence, her submissions were not considered, or new material was considered without notice;

(10)  The conclusions are unsupported by evidence or are so unreasonable that no reasonable decision maker could have reached them;

(11)  Credible documentary evidence or witness evidence was ignored.  Testimony was mischaracterised or irrelevant facts were relied on;

(12)  The burden of proof was improperly shifted to the applicant or an unduly high standard was imposed;

(13)  The decision maker omitted to assess the up-to-date country conditions or fail to give proper weight to corroborative reports;

(14)  The decision conflicts with the Basic Law or rights under the International Covenant on Civil and Political Rights.

7.The above contentions are similar to the grounds she advanced before the judge.

Analysis and disposition 

8.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

9.The applicant’s grounds and submissions are just bare assertions without evidence in support.  In particular, the applicant’s case was not rejected on the point of credibility alone as she has asserted.  In fact, the Board found that she failed to establish there is a real chance she would be subject to any of the requisite risks of harm even assuming that she was assaulted and threatened as alleged on four occasions (the last occasion was thirty years ago).  She did not adduce any evidence to refute the findings of the Board.  The judge has reviewed the Board’s decision in detail and did not treat the credibility findings as “conclusively determinative”.  The applicant failed to demonstrate that the correct legal principles or tests were not applied.  We are not satisfied there is any error of law, procedural unfairness or irrationality in the entire process.

10.Thus, the appeal is devoid of merit and is dismissed accordingly.

The Applicant (Appellant), acting in person

[1]  [2026] HKCFI 4185

[2]  The Board’s decision can be accessed via the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000447_2023_files/the_Board's_Decision.pdf