Re Salazar Jenica Orteza

CACV 786/2026, [2026] HKCA 1844

On appeal from [2026] HKCFI 4153

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 786 OF 2026

(ON APPEAL FROM HCAL NO. 895 OF 2022)

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J U D G M E N T

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Hon K Yeung JA (giving the Judgment of the Court):

Introduction

1.This is the applicant’s appeal against the decision of Deputy High Court Judge (Non-refoulement Claims) Bonnie Cheng dated 23 July 2026[1] (the “Judge” and the “Judge’s Decision”) refusing her application for leave to apply for judicial review.  The intended judicial review was against the decision dated 31 August 2022 of the Torture Claims Appeal Board (the “Board” and the “Board’s Decision”) dismissing her appeal against the decision dated 14 July 2021 of the Director of Immigration rejecting the applicant’s non-refoulement claim (the “Director” and the “Director’s Decision”).

Background

2.The applicant is a national of the Philippines born in 1992.  She first came to Hong Kong in September 2019 as a foreign domestic helper.  The contract was terminated prematurely.  She subsequently had two further contracts, both also got terminated prematurely.  The last one was terminated on 11 March 2021.  She overstayed from 21 April 2021.  On 11 May 2021, she surrendered herself to the Immigration Department and claimed non-refoulement protection.  Her claim was assessed on all risks: torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2[5] risk.  Her claim was made on the basis that if refouled to the Philippines, she would be harmed or killed by Jon Jon Dela Cruz (“Jon Jon”).  Jon Jon was her former partner.  She has with him two children, born in 2010 and 2016 in the Philippines.  The applicant claimed that Jon Jon had burnt her leg with a coal and attempted to rape her in February 2020.  She also claimed that he on 10 May 2021 threatened to kill her if she insisted upon breaking up with him.  She feared returning to the Philippines because her life would be in danger.  She believed the police were corrupt and would not protect her.  She asserted that internal relocation was not viable as Jon Jon had resources and connections.

3.The Board in the Board’s Decision set out in detail the applicant’s background, the basis of her claim and the Board’s reasons for rejecting her appeal[6].  In gist, the Board found the applicant’s account not credible.  Taken at its highest, her claim amounted to a domestic abuse situation that did not engage any of the non-refoulement grounds[7]. The Board reasoned that the threat was conditional on the applicant breaking up with Jon Jon and was not immediate[8]. The applicant complained about police corruption but this should be put in the context that she had only initiated a complaint with the Barangay authorities but had never actually made a complaint to the police.  Based on the available country of origin information (COI), the applicant would have been able to elevate the complaint to the police if she had wished to do so[9]. The Board found that she could safely relocate within the Philippines as Jon Jon lacked the means or skills to locate her[10]. Consequently, the Board found no foreseeable, real, personal or present risk of harm entitling her to protection under any of the applicable grounds[11].

4.By a Form 86 filed on 8 September 2022, the applicant applied for leave to seek judicial review of the Board’s Decision.  She did not provide any grounds for seeking relief in the Form 86 or in her supporting affirmation.  She did not request for a hearing.  By a Form CALL-1 dated 23 July 2026, the Judge dismissed her application.  In gist, the Judge observed that the applicant had not identified any error of law or procedural unfairness or irrationality in the Board’s Decision.  In any event, the Judge noted that the alleged threat to kill the applicant was a single utterance, that the applicant had only reported the attempted rape to the lowest level of government and had not complained to the police, and that the Board considered that relocation was possible.  The Judge did not detect any cause for judicial review.

Appeal to this Court

5.On 29 July 2026, the applicant filed a Notice of Appeal against the Judge’s Decision.  She states that she disagrees with the decisions of the Judge, the Board and the Director.  She complains that the Board and the Director relied on sources of news which were not officially recognised.  There was no proper investigation into her case and her case was not determined fairly.

6.The applicant on 7 September 2026 lodged her written submissions.  She submits that: (1) the Board’s Decisions of the Director’s Decision were unreasonable, irrational and unfair; (2) she may face extrajudicial killing in her home country and therefore should be entitled to protection and right to life; (3) the Board placed too much weight on COI instead of her personal background and experience, and had relied on sources of news that were not officially recognised; and (4) the Director had failed to consider or give weight to evidence supporting her claims of lack of police protection and the presence of state acquiescence.

7.At the hearing, the applicant indicated that she had nothing to add.

Discussion

8.In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, 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.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

9.Further, it is well-established that assessments of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

10.We would first make some overall observations about the grounds and arguments raised by the applicant in this appeal.  Firstly, none of them were raised in the application before the Judge.  It is established law that it is not open to an appellant to rely on grounds that were not argued in the court below, especially when they are fact-sensitive: Flywin Co. Limited v Strong & Associates Limited (2002) 5 HKCFAR 356 at [37]-[39].  Secondly, insofar as the applicant is seeking to do so, it is not open for her to seek to challenge the Director’s Decision in this appeal.  The Director’s Decision had been superseded by the Board’s Decision.  It was no longer susceptible to judicial review:  Re Moshsin Ali [2018] HKCA 549.  Hence, we will not address the arguments in relation to the Director’s Decision.  Thirdly, the applicant’s arguments are mostly general assertions without any particulars.  The applicant has not identified which piece of information or COI relied on by the Board was flawed and how that had materially affected the Board’s assessment.  Fourthly, they do not engage the Judge’s reasons for refusing her application.

11.In any event, there are no merits in the arguments for the following reasons:

(a)  In the present case, the Board’s dismissal of the applicant’s appeal was based principally on credibility grounds and the nature of her claim, it being a domestic abuse situation which did not engage any of the non-refoulement grounds; and

(b)  The applicant’s assertion that the Board placed too much weight on the COI cannot stand.  The Board only referred to the COI when considering whether state protection and internal relocation were reasonably available to her[12], which if they were would negate or reduce the risk of harm that she claimed she might face.  Those were findings of facts properly open to the Board based on the evidence it received and for the reasons it gave.  

12.We are satisfied that the Judge had given proper and adequate reasons for her holding that the intended judicial review was not reasonably arguable.  There is no basis for us to disturb the Judge’s Decision.  The applicant’s appeal has no merits.  We dismiss the same.

The applicant, unrepresented, acted in person.

[1]  [2026] HKCFI 4153.

[2]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3]  This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4]  This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5]  This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[6]  https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000895_2022_files/the_Board's_Decision.pdf

[7]  §§57, 67-69 of the Board’s Decision.

[8]  §66 of the Board’s Decision.

[9]  §§59 to 64 of the Board’s Decision.

[10]  §§70 to 74 of the Board’s Decision.

[11]  §§75 to 84 of the Board’s Decision.

[12]  §§54, 62-63 of the Board’s Decisions.