Re Tolentino Analyn Ambrocio

CACV 791/2026, [2026] HKCA 1846

On appeal from [2026] HKCFI 3913

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 791 OF 2026

(ON APPEAL FROM HCAL NO. 1502 OF 2025)

_________________________________

_________________________________

_________________

J U D G M E N T

_________________

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 K.W. Lung dated 15 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 20 June 2025 of the Torture Claims Appeal Board (the “Board” and the “Board’s Decision”) dismissing her appeal against the decision dated 22 April 2025 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 1986.  She first and last arrived in Hong Kong on 5 September 2019 as a foreign domestic helper.  Her employment contract was terminated on 31 March 2023.  She did not depart and overstayed from 15 April 2023.  She surrendered herself to the Immigration Department on 11 November 2024 and lodged her non-refoulement claim on 6 January 2025.  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 her cousin Gena, who had threatened to kill her and her family over a land dispute involving the applicant’s deceased father’s estate in the Philippines. She alleged that she learned of those threats from her cousin Gilbert and her brothers.  She claimed that Gena armed with a gun visited her family home and made verbal threats.  She claimed that Gena had a strong network across the country and the police could not provide adequate protection.

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]. Most importantly:

(a)  The Board found that “the material allegations of the [applicant] were not supported by evidence.  There have been far too many discrepancies, inconsistencies, contradictions and unreasonableness in connection with the material elements of her story amongst her written evidence which she adopted as evidence and what she said during the oral hearing”;

(b)  The Board then set out in some details in a table[7]those discrepancies, inconsistencies and contradictions, which the Board grouped under the following (not exhaustive) topics:

“About Father’s Final Testament & How the Land inherited?

When did Gilbert call?

What did Gilbert tell [applicant] about Gena’s Threats?

When did [applicant’s] brothers first let her know Gena’s Threats?

When did Gena Start Making Threats?

Who were the one(s) Gena targeted at?

What had been said to [applicant’s] family in Gena’s Threats?

At the time when [applicant] was terminated, did she know she had to leave Hong Kong in 14 days?”

(c)  The Board observed that beyond discrepancies, there are also a lot of unreasonableness in her story, which the Board then detailed[8];

(d)  The Board pointed out that the applicant was evasive during the hearing[9];

(e)  The Board stated that the applicant could not convince it on the balance of probabilities that “allegedly there had been threats from her cousin Gena (or whoever) due to claiming a share of her family’s Land (or by whatsoever reason) nor the alleged associated fears”[10];

(f)  The Board found that there was no evidence to show that Gena was a state actor or was politically connected such that she would endanger the applicant’s life or torture her[11];

(g)  The Board found further that any ill-treatment was limited to verbal threats made through the applicant’s family members and did not attain the minimum level of severity.  The Board found no substantial grounds to believe that the claimed future risk was real and foreseeable[12];

(h)  The applicant did not seek any protection from the police and there was no evidence that the Philippines state was unwilling or unable to afford protection, or that Gena had resources to track the applicant down[13];

(i)  On the basis of the available country of origin (COI) information, the Board found internal relocation to Quezon City or Cebu would not be unduly harsh[14];

(j)  The Board thus concluded that the applicant failed to substantiate her claim for protection under any of the applicable grounds.

4.By a Form 86 filed on 30 June 2025, the applicant applied for leave to seek judicial review of the Board’s Decision.  In her Form 86, she sought inter alia an order of certiorari to quash the Board’s Decision, on grounds that the Board had unlawfully fettered its discretion and acted in a procedurally unfair manner.  She claimed that she was not given the opportunity to make submissions in an oral hearing, nor was she invited to do so.  She alleged further that the Board had relied on source of news not officially recognised or was simply hearsay.  She claimed that the Board’s credibility finding was unreasonable due to the failure to give weight to the documentary evidence.

5.The oral hearing took place on 29 June 2026 which the applicant attended (the “JR Oral Hearing”).  For the reasons set out in a Form CALL-1 dated 15 July 2026, the Judge dismissed her application.  In particular:

(a)  The Judge considered the Board’s Decision.  He, with reference to the paragraph numbers of the Board’s Decision, summarised the Board’s findings as follows:

“(1) There were discrepancies, inconsistencies, contradictions and unreasonableness in connection with the material elements of the applicant’s story. [36]

(2) The Board did not accept her evidence that her cousin had threatened her because of a land dispute [42].  It found there was no evidence that Gina was connected with state officials [43]; that Gina had no intention to harm or kill her if she returns to the Philippines [44]; and that the state was involved. [47]

(3) State protection will be available if she returns to the Philippines. [48] & [60]

(4)  Internal relocation is viable. [66]”

(b)  The Judge at §11 of the Judge’s Decision summarised the applicant’s grounds for judicial review;

(c)  The Judge reminded himself that the Board’s Decision should be examined with rigorous examination and anxious scrutiny;

(d)  He recorded that the applicant had confirmed that she had presented her full story to the Board and the Board’s Decision is not wrong;

(e)  The Judge held that the grounds and arguments put forward by the applicant, as summarised by him at §11 of the Judge’s Decision, were bare assertions without any supporting evidence, and in view of her admissions that the Board’s Decision was not wrong, were insignificant[15];

(f)  He held that the applicant had failed to show that she had any realistic prospect of success in her proposed judicial review of the Board’s Decision.

Appeal to this Court

6.On 29 July 2026, the applicant filed a Notice of Appeal against the Judge’s Decision.  She states that she disagrees with the Judge’s Decision as the court did not scrutinise her claim properly.  She claims that the problem in her home country is severe and that she will be killed by her enemies upon her return, but the Board and the Judge rejected her claim.

7.In her written submissions dated 12 August 2026 which was lodged on 7 September 2026, the applicant puts forward the following grounds of appeal: (1) the Judge wrongly treated the applicant’s admissions in court (that she had “presented her full story” and that the Board’s Decision was “not wrong”) as determinative or dispositive of her application.  She said the Judge should have exercised caution in relying on her “non-legal admissions” because she is a lay person with no legal representation or legal training; (2) the Judge failed to apply the requisite constitutional standard of “anxious scrutiny” (TK v Michael C Jenkins Esq [2013] 1 HKC 526) as to how the Board handled her case.  She specifically raised in her Form 86 and “notice of appeal” that her claim had not been properly scrutinised by the Board.  In particular, she stated that she was not given the opportunity to make submissions on the COI materials relied upon by the Board.  The Judge dismissed her grounds as “bare assertions” without reviewing the official recording or transcript of the Board’s hearing on 6 June 2025; (3) the Judge failed to consider whether the Board had wrongly relied on unverified news sources on state protection and internal relocation before making adverse findings against her.

8.At the hearing, the applicant read out a pre-typed document entitled “Oral Speech for Court of Appeal Hearing”.  The contents are essentially a summary of her written submissions mentioned above.

Discussion

9.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.

10.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.  

11.We now turn to the applicant’s three grounds of appeal. 

12.In relation to Ground 1, this Court has on our own initiative called up and listened to the audio recording of the JR Oral Hearing.  The applicant attended the hearing in person.  She had the assistance of a Tagalog interpreter.  The Judge did ask, and the applicant did say that she was able to tell the full story to the Board, and that she did not consider the Board’s Decision to be wrong.

13.Whilst the applicant did say what she said, this Court has serious reservation as to the utility of asking a lay applicant those questions, and the value of their answers, whether in the affirmative or negative.  There is force in the applicant’s complaint that it is both inapt and unfair to treat such answers given by a claimant who is not legally represented and not legally trained as admissions capable of determining or disposing of the application.

14.This Court would have no hesitation in intervening if leave had been refused (or granted) simply on the views and opinion of a non-refoulement claimant as to the propriety or correctness of the proceeding before the Board of its decision.

15.However, having considered the Board’s Decision and the entirety of the Judge’s Decision, we have formed the view that the Judge did not treat the applicant’s admissions as the sole or determinative basis for refusing to grant leave.  He considered the Board’s Decision, the reasons the Board gave, and the applicant’s written and oral submissions.  In particular, the Judge had given a gist of the factual findings made by the Board.  The Board’s findings are in our view clear, detailed and meticulous.  The Board was clearly entitled to reject the factual basis of the applicant’s claim.  That is a matter within the province of the Board.  The Judge then noted that the applicant’s grounds as summarised by him at §11 of the Form CALL-1 were her bare assertions without evidence, such that in view of her admission that the Board’s Decision was not wrong, became insignificant.  Based on all of the above, and in particular the findings of the Board, the Judge was entitled to conclude that the applicant’s intended judicial review had no realistic prospect of success.

16.In relation to Grounds 2 and 3, the Judge had reminded himself that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  He considered the Board’s Decision.  He summarised correctly the factual findings of the Board.  We reiterate that assessment of evidence is within the province of the Board.  Given the Board’s rejection of the applicant’s factual case, the COI and news materials were at best of subsidiary significance.

17.On the facts of this case, we are of the view that there is no proper basis for us to disturb the Judge’s Decision.  For the above reasons, we dismiss the appeal.

The applicant, unrepresented, acted in person.

[1]  [2026] HKCFI 3913.

[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/2025/HCAL001502_2025_files/the_Board's_Decision.pdf

[7]  §36 of the Board’s Decision.

[8]  §37 of the Board’s Decision.

[9]  §38 of the Board’s Decision.

[10]  §42 of the Board’s Decision.

[11]  §§43 to 44 of the Board’s Decision.

[12]  §46 of the Board’s Decision.

[13]  §§48 to 49 of the Board’s Decision.

[14]  §§61 to 66 of the Board’s Decision.

[15]  After the Form CALL-1 was handed down on 15 July 2026, the applicant filed another Form 86 dated 15 July 2026 for leave to apply for judicial review against the Form CALL-1.  On 29 July 2026, Master Cruden had refused the applicant’s filing of the Form 86 dated 15 July 2026.