MANUEL RAFAEL JR KALAW, alias RAFAEL K MANUEL JR v. TORTURE CLAIMS APPEAL BOARD

CACV 311/2021

[2021] HKCA 1406

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 311 OF 2021

(ON APPEAL FROM HCAL NO 2623 OF 2018)

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JUDGMENT

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Hon Chow JA (giving the judgment of the Court):

BACKGROUND

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (the “Deputy Judge”) given on 3 June 2021.[1] The Deputy Judge refused the applicant’s application for leave to apply for judicial review of the Torture Claims Appeal Board (the “Board”)’s decision dated 30 October 2018 (the “Board’s decision”).

2.  The Board’s decision affirmed the decision of the Director of Immigration (the “Director”) refusing the applicant’s claim for non-refoulement protection in his Notice of Decision dated 9 March 2017 (the “Director’s decision”).

3.  The applicant has consented to this appeal being disposed of on paper.

4.  The applicant lodged his written submissions in support of this application on 29 June 2021.

THE APPLICANT’S NON-REFOULEMENT CLAIM

5.  The applicant is a Filipino national.  His claim is summarised by the Deputy Judge at [4] – [5] of the CALL-1 form.  In short, he claims that if returned to the Philippines, he would be harmed or killed by a loan shark for defaulting on his loan repayments.

THE DIRECTOR’S DECISION

6.  The Director rejected the applicant’s non-refoulement claim on all applicable grounds, including torture risk[2], BOR 2 risk,[3] BOR 3 risk[4], and persecution risk[5].  The Director found that the risk of the applicant being harmed or killed by the loan shark if refouled to the Philippines was low, state protection was available to him, and reasonable internal relocation alternatives were available within the Philippines.[6]

THE BOARD’S DECISION

7.  The applicant appealed the Director’s decision to the Board.  He attended a hearing before the Board on 11 June 2018.[7]  The Board found that the applicant’s testimony or evidence contained in the Non-refoulement Claim Form was not credible, and affirmed the Director’s decision.[8]

THE INTENDED JUDICIAL REVIEW

8.  On 21 November 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision together with a supporting affirmation.  In the affirmation, he merely said that the Board’s decision was mental torture for him, he could not sleep well at night, and the decision was a reminder that he would be killed at any time.[9]

THE JUDGE’S DECISION

9.  The applicant did not request for an oral hearing before the Deputy Judge.  The application was dealt with on paper.[10]

10.  The Deputy Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review, and refused to grant to the Applicant leave to apply for judicial review.[11]  The Deputy Judge’s reasons were set out in Form CALL-1 at [13] – [17]:[12]

“13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13 … Assessment of evidence and COI materials and 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.’

15.  His grounds in support of this application do not assist his application. Since the Board has rejected his evidence, he has no factual basis in support of his claim.

16.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

THIS APPEAL

11.  On 15 June 2021, the applicant filed his notice of appeal.  The ground of appeal as set out in his notice of appeal was that the Board disregarded his dangerous situation.  He expanded upon that in his written submissions, in which he said that he was not a bad person who deserved to be punished, and he was fearful of his situation if returned to the Philippines.  He emphasised that the Board failed to understand the situation in the Philippines properly, and that state (police) protection was only available for rich people.

LEGAL PRINCIPLES

12.  In assessing the merit of an intended appeal, the applicable principles are as follows (Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]):

(1)  The role of the court in a judicial review is not to provide a further avenue of appeal.  Though in non-refoulement cases, an enhanced standard will be adopted in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the court should not usurp the role of the Board as a primary decision-maker.  Assessment of evidence, country of origin information materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board.  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.

(2)  An appeal against the refusal of leave by a judge of the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments that could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the judge’s decision and would only reverse that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  The Court of Appeal would only examine the judge’s decision in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the Court of Appeal’s role to examine the Board’s decision afresh as if it is a fresh application for judicial review.

OUR VIEW

13.  The ground of appeal now identified by the applicant in his notice of appeal, namely, that the Board disregarded his dangerous situation in the Philippines, is a bare allegation without particulars.  In any event, it is not this Court’s role to re-examine the Board’s decision afresh.

14.  As earlier mentioned, the Board found the applicant’s testimony and evidence to be unreliable.  There was thus no factual basis to support his claim for non-refoulement protection.

15.  We note that the Deputy Judge took the view that the Applicant was out of time in making his application for leave to apply for judicial review.  In view of the fact that the Board’s decision was dated 30 October 2018 and the Applicant made the leave application on 21 November 2018, we do not consider that the Applicant was late in making the application.

16.  Nevertheless, it is clear that the Deputy Judge refused to grant leave to apply for judicial review because he could find no error of law or procedural unfairness in the Board’s decision, and he considered that the Board’s decision was not Wednesbury unreasonable or irrational.  The applicant has failed to point to any errors in the Deputy Judge’s views on these matters.  The Deputy Judge’s decision to refuse to grant leave to apply for judicial review is correct.  We see no basis to disturb the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.

[1] [2021] HKCFI 1516 (Form CALL-1).

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

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

[4] 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.

[5] 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.

[6] [2021] HKCFI 1516 at [7].

[7] Ibid at [8].

[8] Ibid at [9].

[9] Ibid at [11].

[10] Ibid at [2].

[11] Ibid at [18].

[12] Ibid.