RE DONTOGAN LOIDA TERCERO

CACV143/2022

[2022] HKCA 1039

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 143 OF 2022

(ON APPEAL FROM HCAL NO. 347 OF 2019)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 7 April 2022 refusing her leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 1 February 2019 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 5 February 2018 rejecting her non-refoulement claim.

2.  The applicant’s appeal was scheduled to be heard on 6 July 2022. The applicant was directed to lodge her written skeleton argument by 8 June 2022 and further warned that if she failed to do so, she shall be deemed to have waived the right to have an oral hearing and the hearing date would be vacated with the appeal being determined on paper. This was communicated to the applicant by the Court’s letter dated 3 May 2022 and the Notice of Hearing dated 10 May 2022.

3.  The applicant failed to lodge her skeleton argument by the stipulated time, the hearing date was accordingly vacated. We have proceeded to process this appeal on paper based on the available materials.

4.  The applicant is a national of the Philippines. She had worked as domestic helper in Hong Kong. When she completed her last employment contract, she did not depart and has since 16 September 2010 been overstaying in Hong Kong. On16 February 2015, she surrendered to the Immigration Department. She later raised a non-refoulement claim based on fear of being harmed or killed by her creditor because of her inability to repay her debt. The applicant’s case was set out in detail in the Director’s decision at [7], and summarised by the Board at [20] of its decision and by the Judge at [1] to [3] of the Form CALL-1 dated 7 April 2022, [2022] HKCFI 1000.

5.  In gist, in 2004 the applicant took out a loan from a moneylender secured by her mother’s land. The applicant initially intended to use the money for her business, but had to use part of it to pay the medical and funeral expenses of her father who was unexpectedly diagnosed of cancer. The applicant defaulted on the interest payments as her business did not generate enough income. After the moneylender had chased for repayment a few times, the applicant came to Hong Kong and also went to Macau and Mainland China in 2007 to avoid her. In 2008 upon learning that the moneylender would confiscate her mother’s land, the applicant came to work in Hong Kong, during which she had made remittances to her mother for paying the monthly interests, but she stopped doing so after she lost her job. Then in April 2014, she learnt from her sister that her mother was beaten up for refusing to disclose her whereabouts. Since 2016, the applicant had lost contact with her family. As she remains indebted to the moneylender, she feared for life, and thus applied for non-refoulement protection.

6.  By a Notice of Decision dated 5 February 2018, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], the BOR 3 risk[2], the BOR 2 risk[3] and the persecution risk[4].

7.  The applicant appealed the Director’s decision to the Board. An oral hearing was held on 20 November 2018, during which the applicant answered questions put by the Board. By its decision dated 1 February 2019, the Board dismissed the appeal. In short, the Board considered, for the reasons given in [23] of the decision, that the applicant’s evidence was self-contradictory and inconsistent and there was no merit in her claim. The Board held that there was no pain or suffering or ill-treatment within the definitions of “torture” or “persecution” or the scope of BOR 3 risk ground, and the facts of the case do not engage the BOR 2 risk ground. The Board further found that state protection and internal relocation alternatives were reasonably available to the applicant, which would reduce or negate any risks that she might face. The Board accordingly concluded that the applicant failed to establish her entitlement to non-refoulement protection under any of the applicable grounds.

8.  The applicant filed her Form 86 together with a supporting affirmation on 8 February 2018 to seek leave to apply for judicial review against the decision of the Board. The Form 86 did not set out any ground for seeking relief. The supporting affirmation only stated that the Board disregarded her dangerous situation, but did not provide any particulars or elaborations.

9.  The Judge dealt with the application on the papers. By his decision of 7 April 2022, the Judge refused to give leave to apply for judicial review as he considered the intended judicial review had no prospect of success. He gave his reasons at [8] to [11] of the Form CALL-1 as follows:

“8. … in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

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.

10. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

11. 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 Applicant’s claim.”

10.  The Notice of Appeal filed on 14 April 2022 set out the following grounds of appeal:

(1)  The Board and the Director failed to comply with their duties to make sufficient enquiries into the conditions of the country of origin and had adopted a passive approach, contrary to the high standards of fairness stated in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at [54] and [55] and TK v Jenkins (unreported) CACV 286/2011, 21 November 2012, at [22] and [23].

(2)  The Board and the Director failed to take into account or give proper consideration to the fact that: (a) the applicant’s life was dangerously threatened by her enemies and she would be harmed if she returned to her country; and (b) the applicant must have been placed in severe mental distress as a result of being targeted or traced by her enemy wherever she was in her country, and she could not get state protection.

(3)  It is said that the applicant’s claim has no merit, but the applicant can prove that she faces real risk of harm in her country.

11.  In our view, the grounds of appeal are unarguable. The focus of an appeal in the Court of Appeal is the correctness of the decision in the court below. The Court of Appeal will only interfere with a refusal to grant leave to apply for judicial review if the appellant can demonstrate that the judge had made errors of law or failed to take into account relevant matters, or was otherwise plainly wrong: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(2)].

12.  In the present case, the applicant has not identified any error in the Judge’s decision and reasons. The complaints she made in the notice of appeal against the Board and the Director were not raised in the application for leave to apply for judicial review. The Judge therefore did not have an opportunity to consider them. Further, it is impermissible for the applicant to advance new grounds in an appeal, especially grounds that are fact-sensitive.

13.  In addition, the grounds of appeal are no more than general and vague assertions. The applicant has not provided any supporting particulars to show, for example, what further enquiries that the Board and the Director should have, but failed to, make.

14.  Moreover, the Board had for the reasons given in the Decision rejected the factual basis of the claim as being incredible. There is thus no proper factual foundation for the complaints in grounds (2) and (3) of the grounds of appeal. Evaluation of credibility and assessment of risks are matters for the Board and the Director, who are the primary decision makers. The Court will only interfere with their findings if it is shown that their findings are erroneous in law, irrational or involve procedural irregularity or unfairness. The applicant has not shown any basis for the Court to interfere with the assessment made by the Board.

15.  We have in any event considered the papers. In our view, even accepting the applicant’s factual assertions, her case does not meet the legal requirements for any of the applicable grounds. We agree with the Judge that there is no public law ground to interfere with Board’s analysis and conclusion and that the intended judicial review has no reasonable prospect of success. Accordingly, we dismiss the appeal.