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CACV 525/2020
[2023] HKCA 233
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 525 OF 2020
(ON APPEAL FROM HCAL NO 749 OF 2018)
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BETWEEN
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BERONIO ALMA BANGAHON |
1st Applicant |
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ROY TENZIN TSERING also known as |
2nd Applicant |
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ROY TENZIN TSERING BERONIO, a minor, |
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by his mother and next friend, BERONIO ALMA |
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BANGAHON |
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and |
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TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative
Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative |
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Interested Party |
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| Before: |
Hon Chow JA and S T Poon J in Court |
| Date of Written Submissions: |
6 January 2023 |
| Date of Hearing: |
6 February 2023 |
| Date of Judgment: |
27 February 2023 |
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J U D G M E N T
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Hon S T Poon J (giving the Judgment of the Court):
1. This is an appeal concerning only the 1st applicant against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 22 September 2020 (“the Order”) refusing to grant leave to the applicants to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 24 April 2018. The Board dismissed the applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 16 December 2016.
2. The 2nd applicant is a minor and the son of the 1st applicant. On 20 October 2022, this Court, by consent order made jointly by the solicitors of the 2nd applicant and the Director, ordered, inter alia, that the 2nd applicant’s appeal be allowed on the ground that the Board’s decision dated 24 April 2018 had failed to separately consider the 2nd applicant’s non-refoulement claim with reference to his personal circumstances and insofar as the 2nd applicant is concerned, the Order made by the Judge be set aside.
3. Accordingly, we will only deal with the 1st applicant’s appeal.
Background
4. The 1st applicant is a national of the Philippines. Since 2007, the 1st applicant had been permitted to work in Hong Kong as a foreign domestic helper. When the 1st applicant’s last employment contract expired on 18 April 2016, she did not depart and instead overstayed, and on 19 May 2016, she surrendered with her son, the 2nd applicant, to the Immigration Department and jointly raised a non-refoulement claim on the basis that if they returned to the Philippines, they would be harmed or killed by the 1st applicant’s ex-boyfriend for having an affair with another man in Hong Kong resulting in the birth of the 2nd applicant. Details of the 1st applicant’s claim were summarised by the Judge at §§1-4 of the CALL-1 Form.
5. By a Notice of Decision dated 16 December 2016, the Director dismissed the applicants’ non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
6. The applicants each appealed the Director’s decision to the Board, and a combined oral hearing was held on 27 February 2018 before the Board. The 1st applicant gave evidence on behalf of herself and the 2nd applicant. On 24 April 2018, the Board dismissed the applicants’ appeal, and confirmed the Director’s decision (“the Board’s Decision”).
7. In its decision, the Board accepted the 1st applicant’s claim of being abused for years by her ex-boyfriend and of her fear of being harmed by him upon her return with the 2nd applicant to the Philippines, but found in the absence of any official involvement that state/police protection would be available to them as well as reasonable internal relocation within the Philippines for them to move safely to other areas away from the 1st applicant’s home district without any risk of being located by her ex-boyfriend that their claim for non-refoulement protection failed on all applicable grounds.
The Judge’s Decision
8. On 30 April 2018, the applicants filed a Form 86 against the Board’s Decision.
9. On 22 September 2020, the Judge refused to grant leave to the applicants to apply for judicial review for the following reasons:
“10. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
11. In the applicants’ case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in their claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of the Philippines, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
12. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicants’ claim.
13. For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their leave application.”
This Appeal
10. In the Notice of Appeal dated 28 September 2020, the 1st applicant put forward the following ground(s) of appeal, “we would like to reject and review the decision made by the Torture Claims Appeal Board on our non-refoulement case. They disregard our dangerous situation.”
11. Pausing here, documents were also filed to the court which concern only the 2nd applicant. Solicitors for the 2nd applicant filed a supplementary Notice of Appeal for the 2nd applicant dated 28 June 2021. Also, by consent summons dated 6 December 2021 jointly applied by the applicants and the Director of Immigration, this Court ordered[5] on 8 December 2021 that the 2nd applicant have, inter alia, leave to adduce new evidence and to amend the Form 86. The amended Form 86 was filed on 29 April 2022, with amendments limited to the 2nd applicant’s relief sought and the basis of his non-refoulement claim as a minor.
12. As for the 1st applicant, in her 6-page written submissions dated 6 January 2023, she stated that her grounds of appeal were (1) the Board failed to properly consider the prevalence of gang violence in the Philippines and/or the incapability/unwillingness of the authorities in the Philippines to provide adequate protection; and (2) the Board failed to provide adequate reasons for its decision.
13. At the hearing of this appeal, the 1st applicant indicated that she has nothing further to add in support of her present appeal.
Discussion
14. The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).
15. The 1st applicant’s first ground that the Board failed to properly consider the prevalence of gang violence in the Philippines and/or the incapability/unwillingness of the authorities in the Philippines to provide adequate protection is without merit. There was no evidence suggesting that the alleged gang the ex-boyfriend belonged to would cause any harm to the 1st applicant. Most importantly, 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. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
16. As for the 1st applicant’s second ground that the Board failed to provide adequate reasons for its decision, to the extent of the 1st applicant, the Board had provided reasons that in the absence of any official involvement that state/police protection would be available to the 1st applicant as well as reasonable internal relocation within the Philippines without any risk of being located by her ex-boyfriend.
17. For the reasons above, the 1st applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 22 September 2020 insofar as it relates to the 1st applicant, and has failed to raise any viable ground of appeal against the Order.
18. The 1st applicant’s appeal has no merits, and is dismissed.
(Anderson Chow)
Justice of Appeal
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(S T Poon)
Judge of the Court of
First Instance
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The 1st Applicant, acting in person.
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 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.
[5] By Mr Justice Au JA.
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