|
CACV 376/2021
[2021] HKCA 1671
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 376 OF 2021
(ON APPEAL FROM HCAL 2757 OF 2018)
________________________
| RE |
YAMON RIZA RAGA |
Applicant |
________________________
Before: Hon Barma JA and Lisa Wong J in Court
Date of Hearing: 1 November 2021
Date of Judgment: 15 November 2021
____________________
JUDGMENT
____________________
Hon Lisa Wong J (giving judgment of the court):
The appeal
1. This is an appeal against the order made by Deputy High Court Judge K W Lung (“Judge”) on 22 July 2021 (“Judge’s Decision”) refusing to grant leave for judicial review. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 13 November 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”). Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 27 March 2018 (“Director’s Decision”).
Basis and allegations in support of NRF Claim
2. The basis of the NRF Claim made by the applicant, a national of Philippines now aged about 32, is a fear of being harmed or even killed by her granduncle Junior Raga (“JR”) due to a dispute over a piece of land in Burauen (“Land”) given to the applicant by her grandmother (“Grandmother”).
3. The circumstances giving rise to such fear have been set out in detail in paragraph 8 of the Director’s Decision and paragraphs 9 to 46 of the Board’s Decision and in gist in [5] of the Judge’s Decision embodied in the Form CALL-1 dated 22 July 2021, [2021] HKCFI 2058 (“Form CALL-1”).
4. Briefly:
(1) Grandmother owned the Land, which she let to some growers of coconut trees. The harvest was evenly shared between the Grandmother and the tenants.
(2) In mid 2011, Grandmother verbally transferred the Land to the applicant, which effectively gifted her the right to half of the harvest of the coconut trees.
(3) As the applicant’s share of the harvest was insufficient for the maintenance of her children, she started working as a domestic helper in Malaysia.
(4) In late 2012, the applicant discovered that her mother had borrowed 50,000 pesos from JR (“Loan”) and had used the Land as collateral.
(5) At the time, JR was a village councillor in the Burauen council. He was affluent and owned a lot of land in the country.
(6) In January 2014, the applicant remitted 50,000 pesos to her mother to repay the Loan. The applicant’s mother accordingly repaid JR the Loan.
(7) In June 2014, the applicant (who had by then returned to the Philippines) approached JR and asked for the return of the Land, as the Loan had been settled. JR refused, whereupon the applicant approached the village chief for assistance, but to no avail.
(8) That night, JR went to the applicant’s home. They had a heated argument.
(9) The next day, JR went to the applicant’s home again in a drunken state. He verbally abused, and threatened to kill, the applicant if she tried to claim the Land from him.
(10) The applicant was subjected to further threats in the ensuing months. JR sometimes approached her at night with a chopper or knife in his hand.
(11) Sometime in July 2014, the applicant called JR a “disrespectful and untrustworthy government official”, whereupon JR slapped her face and again threatened to kill her.
(12) The applicant did not seek assistance from the Philippine National Police (“PNP”). She believed that they would treat her dispute with JR as a personal matter and will not offer her any help. In any event, she also believes the PNP are corrupt and she has no money to bribe them.
(13) Upon the advice of her mother, the applicant fled to Manila, where she applied to work as a domestic helper in Hong Kong. The applicant’s wait for the issue of her visa to Hong Kong in Manila from July to October 2014 was uneventful.
(14) On 9 October 2014, the applicant arrived in Hong Kong to work as a domestic helper.
Overstaying in Hong Kong and lodgment of NRF Claim
5. The applicant last arrived in Hong Kong as a visitor on 7 April 2016 on the strength of her Filipino passport. The applicant was permitted to remain in Hong Kong until 21 April 2016. She overstayed and subsequently surrendered to the Immigration Department on 27 June 2016. She raised the NRF Claim by written submission dated 18 July 2016 and completed a Non-Refoulement Claim Form (“NCF”) on 3 March 2018.
Director’s Decision
6. After considering the information provided by the applicant in the NCF and at the screening interview on 19 March 2018, the Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].
(1) First, the risk of future harm from JR is low. The past ill-treatment did not attain a minimum level of severity. The sole physical attack by JR was a slap on the applicant’s face in July 2014. The applicant only sustained swelling and redness, for which she did not seek medical treatment. She did not encounter anything eventful since she left home in mid 2014. Nor did she adduce any evidence that JR was actively searching for her or was interested in causing her serious harm.
(2) Second, the availability of reasonable state protection would lower or even negate the risk. There is objective country of origin information (COI) showing that the Philippine government has taken practical steps with positive results to improve institutional effectiveness and to monitor the conduct of the PNP. There are channels for complaints against misconduct of the PNP, including the Office of the Ombudsman. It was the applicant herself who decided not to seek assistance from the PNP or other authorities in the Philippines in the beliefs (1) that the PNP were corrupt and she could not afford a bribery; and (2) that they would not assist her by treating her dispute with JR a private matter and would not offer assistance.
(3) Third, the perceived risk, localised in Burauen, can be reduced by internal relocation within a large populous country such as the Philippines. The applicant, an able-bodied adult having education up to the 1st year of college and 4 years of overseas working experience, would suffer little or no hardship in moving to other districts in the Philippines, say Manila or Cebu.
Appeal to Board and Board’s Decision
7. The applicant appealed to the Board. The Board conducted a rehearing of the NRF Claim on 15 August 2018, at which the applicant gave evidence and answered the Board’s questions through an interpreter.
8. The Board dismissed the appeal on all 4 applicable grounds for non-refoulement protection. In summary, although the applicant’s oral and written claims regarding the NRF Claim were generally consistent, the applicant had not adduced any documentary evidence to support such claim, such as a copy of the title deed of the Land or a copy of the agreement for the Loan. In any event, there was a low risk of future harm as JR had not harmed the applicant or her family since their last confrontation.
9. The Board also reached the same conclusions as the Director regarding the availability of reasonable state protection and internal relocation options.
Application for leave for judicial review and Judge’s Decision
10. By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 2757/2018 on 4 December 2018, the applicant applied for judicial review of the Board’s Decision without stating any proposed ground for judicial review. By the supporting affirmation of the same date, the applicant merely exhibited copies of the Director’s Decision and the Board’s Decision.
11. The applicant did not ask for an oral hearing. The Judge dismissed the application for leave for judicial review on paper for the reasons set out in [14] to [16] of the Form CALL-1:
“14. The applicant has not set out any error of the Board in the assessment of her case in support of her application. Her grounds in support of this application do not assist her.
15. 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.
16. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”
Appeal to Court of Appeal - grounds of appeal and submission
12. By a notice of appeal filed herein on 3 August 2021, the applicant appealed against the Judge’s Decision on the ground that her life would be in danger if she should return to the Philippines.
13. On 30 September 2021, the applicant lodged written submission, by which she alleged:
(1) that the Judge had failed to appreciate the significance of her case;
(2) that the lack of “assistance” to her is an error of law or procedure or evidence of procedural unfairness or failure to adhere to high standards of fairness;
(3) that she has been “deprived of making a full appeal and to put forward my grounds fairly” without language assistance;
(4) that the Board had unlawfully fettered its discretion by refusing her appeal on the ground that “it did not satisfy the requirement”;
(5) that the adjudicator acted in a procedurally unfair manner in dealing with her appeal;
(6) that the Board’s Decision was unreasonable or irrational in the public law sense or is a result of procedural errors or unfairness; and
(7) that “the discriminatory act of authorities towards non-refoulement claimant merely on the basis of quick disposal of non-refoulement case is unacceptable and is detrimental to the spirit of the judicial system”.
14. The applicant appeared in person at the hearing of the appeal on 1 November 2021. She informed the court of the passing of Grandmother and claimed that she would have nobody to support her if she returns to the Philippines.
Discussion
Court of First Instance’s role in judicial review in non-refoulement claim
15. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].
Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim
16. An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[5]are met. Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below. In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2) & (4)].
Application for judicial review was doomed
17. The applicant had not in either the Form 86 or her supporting affirmation put forward any or any proposed grounds for judicial review based on errors of law, procedural unfairness or irrationality on the part of the Board. The proposed application for judicial review of the Board’s Decision was therefore doomed to fail. The Judge cannot be faulted for refusing leave.
No arguable ground of appeal
18. That being the case, we do not see how it can be said that the Judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.
19. In any case, the applicant has not formulated any ground of appeal against the Judge’s Decision, properly so called, in the notice of appeal. It does not advance her appeal just to repeat in the notice of appeal that her life would be in danger in the Philippines.
(1) The questions of whether the applicant would be at risk of life or torture if she is refouled to the Philippines and, if so, whether the danger would be lowered or negated by the availability of state protection and/or reasonable internal relocation options are all matters of fact within the province of the Board (after the Director).
(2) The applicant’s much-repeated bare assertion that her life would be in danger in the Philippines is inconsistent with the findings of both the Director and the Board.
(3) As noted in [10] above, she had not advanced any ground for judicial review that indicates any errors of law, procedural unfairness or irrationality on the part of the Board (or the Director) in reaching the adverse findings of fact and decisions against her.
20. Turning to the written submissions, we have 2 observations:
(1) First, none of the matters alleged therein were raised before the Judge. As stated in [16] above, this court will not entertain any new arguments that are fact sensitive that should have been raised in the court below.
(2) Second, those allegations are all too vague and lacking in particulars to merit any or any serious consideration.
21. In summary, the applicant did not in the Form 86 or the accompanying affidavit point to any error of law, procedural unfairness or irrationality in the findings by the Board. The application for judicial review of the Board’s Decision was thus hopeless and leave was rightly denied. Nor did she in the notice of appeal or the written or oral submissions before us identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. We cannot discern any either.
22. In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that they are both in order.
Disposition
23. For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.
| (Aarif Barma) |
(Lisa Wong) |
| Justice of Appeal |
Judge of the |
| |
Court of First Instance |
The applicant was unrepresented and appeared in person
[1] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[2] This refers to a 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, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[3] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[5] [1954] 1 WLR 1489.
|