Re Acosta Maricel Cacayan

CACV 804/2026, [2026] HKCA 1850

On appeal from [2026] HKCFI 4145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 804 OF 2026

(ON APPEAL FROM HCAL NO. 857 OF 2023)

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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) Val Chow dated 31 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 24 May 2023 of the Torture Claims Appeal Board (the “Board” and the “Board’s Decision”) dismissing her appeal against the decision dated 9 June 2022 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.  She worked in Hong Kong as a foreign domestic helper.  She lodged a non-refoulement claim and submitted her claim form to the Immigration Department on 8 March 2022.  Her claim was assessed on torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2[5] risk.  Her claim was made on the basis that if she returned to the Philippines, she would be harmed or killed by a moneylender named “Gerome” for a loan which she borrowed in July 2018 to pay for her mother’s medical expenses.  The applicant returned to the Philippines for a holiday from October to November 2019 without experiencing any incident, and later changed her phone number to avoid Gerome.  She claimed that the Philippine police would not protect her as they would not get involved in a dispute of this nature.

3.The Board set out in the Board’s Decision details of the applicant’s claim, and the Board’s reasons for rejecting her appeal[6].  In gist, the Board found that whilst the applicant’s account was generally credible on the balance of probabilities, she failed to satisfy the threshold entitling her to protection under any of the applicable grounds.  On the alleged risk of harm, the Board found no evidence that Gerome had a real intention to harm or kill the applicant; she had never met him in person and the threats were merely verbal.  The risk was assessed to be remote and not foreseeable or real[7].  On state protection, the Board assessed on the basis of the country of origin information (COI) that police protection is available and the government had taken practical steps to improve police effectiveness[8].  On internal relocation, the Board assessed that even if a real risk existed, it would not be unduly harsh for the applicant to relocate to Cebu City and Davao City[9].  

4.By a Form 86 filed on 2 June 2023, the applicant applied for leave to seek judicial review of the Board’s Decision.  She did not put forward therein any grounds for seeking relief, but raised a number of procedural allegations against the Board and the interpreter in her supporting affidavit, as summarised in [8] of the Form CALL-1 dated 31 July 2026.  The Judge heard her application on 13 July 2026 and subsequently dismissed it for reasons given in [5] to [15] of the Form CALL-1.  In gist, the Judge held that the applicant did not particularise or elaborate on her allegations.  No attempt was made to identify the documents she claimed to have submitted to the Board but which she claimed the Board did not understand.  The Judge was of the view that the Board had considered her claim and the evidence in great detail.  There was no unfairness caused by any translation or interpretation issue.  The applicant’s contention that she would not have protection in her home country or that she could not relocate were bare assertions.  In the absence of any error of law, procedural unfairness or irrationality in the Board’s Decision, the Judge concluded that the intended challenge was not reasonably arguable.

Appeal to this Court

5.On 4 August 2026, the applicant filed a Notice of Appeal against the Judge’s Decision.  She states that she disagrees with the Judge’s Decision as he failed to scrutinise her claim.  She reiterates that the problems in her home country are severe and she will be killed by her enemies upon refoulement.  

6.The applicant lodged her written submissions on 11 September 2026, which was two days late as per the court’s directions.  Given that it is not a significant delay, this Court allowed the late submission and relisted her case for hearing.

7.The written submissions contain background facts and description of the political situation that purportedly relate to her home country and her claim.  The submissions also contain general statements and legal principles, and a plethora of unparticularised arguments against the Judge’s decision and the Board’s findings and assessment.  We will deal with these in more detail below.

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

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 would first make some overall observations about the numerous grounds and arguments raised by the applicant in this appeal.  Firstly, the background facts and the claimed fear of her enemies in her home country bear no relevance to the facts of her claim.  She asserts therein that “I came to Hong Kong to save my life”, that “if I go back … I will be killed by my enemy”, that “My enemy is still looking for me”, that “my enemy was involved with the ruling government who want to kill me”, that “I was attacked by my enemies while in my home country”, and that “I was tortured brutally while in my country”, etc.  None of those bears any resemblance to her claim, which was just that whilst working in Hong Kong she borrowed a loan from a lender which she could not repay.  There was no “enemy” as such, and had been no torture.  Secondly, the applicant does not explain how the general statements and principles of law relate to or apply to her case or appeal.  Thirdly, the numerous criticisms levelled against the Board and the Judge are vague, generic and general without any particulars.  They do not properly engage the Board’s Decision or the Judge’s Decision.  Fourthly, to the extent that the applicant’s grounds of appeal and submissions contain matters that are raised for the first time before this Court, it is not open for the applicant to do so, especially when they are fact-sensitive: Flywin Co. Limited v Strong & Associates Limited (2002) 5 HKCFAR 356 at [37]-[39].  

12.Specifically, the grounds and submissions are unarguable for the following reasons:

(a)  The grounds in the Notice of Appeal alleging failure on the part of the Judge to scrutinise her case and the severity of her problems are misconceived.  It is well-established that the court in its supervisory role does not consider a claimant’s claim afresh.  The assessment of the risk of harm, availability of state protection and internal relocation is within the province of the primary-decision makers;

(b)  The complaint that the Board did not give the applicant sufficient time to arrange evidence to support her claim and her appeal is devoid of particulars.  The applicant did not make any requests to adduce additional evidence before the Board.  Instead, she adopted all the documents and information in the hearing bundle as evidence in support of her claim.  She was also given the opportunity to make oral submissions but mostly relied on her written submissions[10];

(c)  The complaint about the Board’s reliance on the COI is vague and general.  The applicant has failed to identify which item of the COI she claims was incorrect, outdated or unverified, or how they could have materially affected the assessment of the Board.  In any event, the Board duly assessed the relevance of the COI when considering whether state protection and internal relocation were reasonably available to the applicant[11].  Contrary to the applicant’s argument, the Judge also gave due consideration to the Board’s findings, and explained with detailed reasons why he found no basis to intervene[12];

(d)  Overall, the applicant’s submissions on the alleged hardship and danger in her home country cannot stand in the light of the Board’s finding that her claim did not reach the requisite threshold entitling her to protection under any of the applicable grounds.

13.For these reasons, the applicant’s appeal has no merit.  Accordingly, the appeal is dismissed.  

The applicant, unrepresented, acted in person.

[1]  [2026] HKCFI 4145.

[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/2023/HCAL000857_2023_files/the_Board's_Decision.pdf

[7]  §§36 to 37 of the Board’s Decision.

[8]  §§38 to 40 of the Board’s Decision.

[9]  §§41 to 42 of the Board’s Decision.

[10]  §7 of the Board’s Decision.

[11]  §§39-40, 42 of the Board’s Decision.

[12]  §§8, 12 to 17 of the Form CALL-1.