AGCAOILI FREDDIE AGCAOILI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 286/2023, [2024] HKCA 72

On Appeal From [2023] HKCFI 2304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 286 OF 2023

(ON APPEAL FROM HCAL NO. 1481 OF 2019)

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J U D G M E N T

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Hon Anthony Chan J (giving the Judgment of the Court)  :

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”)  on 11 September 2023[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 20 May 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 5 October 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines born in 1977.  He last entered Hong Kong as a visitor on 5 August 2017 and was permitted to stay until 19 August 2017.  He overstayed and surrendered to the Immigration Department on 28 August 2017.  The applicant submitted his written representations for non-refoulement claim dated 4 September 2017 and 9 October 2017 respectively and his non-refoulement claim form dated 16 August 2018 to the Immigration Department.  The applicant’s claim was made on the basis that, if he returned to the Philippines, members of the New People’s Army (“NPA”), including a man called Joselito Agustin, would kill him due to his refusal to join the NPA.  The factual background of the applicant’s claim was set out at [40] to [62] of the Board’s decision.

3.  By notice of decision dated 5 October 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] 

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 15 March 2019, during which the applicant gave evidence and answered questions from the Board.  At the hearing, the applicant submitted details about past events that happened to him in the Philippines, but they were contrary to his previous evidence.  The Board did not accept that the applicant might not remember, inter alia, whether he lived with his wife and children or not and whether he or they lived in Manila or Piddig during a certain period of time.  It also did not accept that the applicant might not remember whether he had to flee from his home in 1993 as stated in his non-refoulement form or in 2003 as claimed at the hearing.  The Board further did not accept that the applicant’s father was associated with the NPA, the NPA had any interest in recruiting the applicant and the applicant was shot by the NPA in Manila.  It found huge discrepancies in the applicant’s timeline and claims during the hearing compared to previously submitted information, but the applicant offered no explanation for the inconsistencies.  In light of the inconsistencies, gaps and other problems with the applicant’s evidence, the Board rejected the applicant’s claims in their entirety.

5.  The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to the Philippines.  In light of its findings, it did not accept that the applicant had to flee from any place in the Philippines for safety reasons.  As such, the Board found that if the applicant were to return to the Philippines, neither the NPA nor any members of the NPA would seek to harm him. 

6.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to the Philippines.  By its written decision dated 20 May 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.  On 31 May 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, he simply requested to reject and review the Director’s decision and claimed that they disregarded his dangerous situation.  The Board’s decision was exhibited to the affirmation.

8.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing. On 11 September 2023, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [13] to [16] of the Form CALL-1 as follows:

“13. 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.

14. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 66 - 114 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during the hearing before the Board, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

15. The fact is that it has also been established by the Director in his decisions that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16. 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.”

Appeal to this Court

9.  On 15 September 2023, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were his request to reject and review the decision made by the Court and that they disregarded his dangerous situation.  

10.  The applicant did not lodge any written submissions.

11.  As such, we shall accordingly determine the appeal on the basis of the available documents and materials.  

Discussion

12.  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, 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.

13.  In the present case, the Board found that there was no real risk of harm upon refoulement, because it considered the applicant to be untruthful and to have fabricated his claims, and did not accept that the NPA or any of its members would seek to harm the applicant as alleged.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  As for the applicant’s assertion of disregard to his dangerous situation, it is a mere general and bald assertion regarding the decision of the Board without any particulars.  It does not constitute any viable ground of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

14.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

15.  The applicant’s appeal is accordingly dismissed.