RE SITCHON MERCEDITA DELA CURZ

CACV 338/2023 , [2024] HKCA 729

On Appeal From [2023] HKCFI 2660

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 338 OF 2023

(ON APPEAL FROM HCAL NO. 3097 OF 2019)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court)  :

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan of 13 October 2023 in which he refused to grant leave to the applicant to apply for judicial review.  The applicant consented to her appeal being disposed of on paper in a written confirmation filed on 25 October 2023.

2.  Despite the directions of the Registrar of Civil Appeals dated 25 October 2023, the applicant failed to lodge the skeleton argument by the stipulated time.  The written submissions were late by five days.  We will consider the applicant’s written submissions nonetheless. 

2)  Factual background

3.  The applicant is a national of the Philippines.  She last arrived in Hong Kong in December 2017 and was permitted to stay as a foreign domestic helper until November 2019.  She was later arrested and in March 2019 she was convicted of making a false representation to an Immigration officer.  She was then detained at Castle Peak Bay Immigration Centre[1].  By six written representations of the applicant in March and April 2019, the applicant raised a non-refoulement claim by written representation[2].

4.  The basis of the applicant’s claim is that she would be harmed or killed by her stepfather for witnessing him having sexual intercourse with her mother’s sister, and that her stepfather would kill the applicant if she tells anyone about it[3].

5.  The background facts have been summarized in the decision of the Judge at [2] to [5].

3)  The Director’s Decisions

6.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 20 June 2019.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (‘BOR 3’), Bill of Rights Article 2 (right to life)  risk (‘BOR 2’)  as well as other statutory and convention rights against torture and persecution[4] (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 23 September 2019, the Board dismissed the applicant’s appeal on 18 October 2019 (‘the Board’s Decision’).

8.  The Board’s reasoning and decision have been summarized in the decision of the Judge at [9].

5)  Decision of the Judge

9.  The applicant filed his Form 86 supported with an affirmation.  The applicant relied on nine grounds for the intended judicial review challenge and those grounds have been summarised in the Judge’s decision at [10].

10.  The Judge held at [11] of his decision that all nine intended grounds of the applicant are vague and bare assertions containing key words and phrases but without any relevant necessary particulars or specifics as to how they apply to the applicant’s case.  He held at [12] and [13] that in the absence of legal error, judicial review is not an avenue for revisiting the Board’s decision.  Where internal relocation was possible, it was not unreasonable for the applicant to relocate to another part of the Philippines.  There was no justification to afford the applicant with no-refoulement protection.  

6)  Grounds of appeal

11.  The applicant in the notice of appeal stated the following in summary :

(1)  The Director failed to give proper weight to state acquiescence.

(2)  The Court and the Board also failed to take such argument into account before reaching their decisions.

(3)  The Board failed to make sufficient enquiries before making its decision.

(4)  The Director while referring to COI ‘kept including meaning which suited my pre-conceived conclusion’.  This was a clear case of unfair attitude which should render the decision void.

(5)  The gravity of the applicant’s circumstances has not been weighed or realized.  The applicant should be given an opportunity to plead her case properly.

12.  The applicant in her written submission stated general statements of law, quotations from cases and bald statements of procedural fairness on the part of the Board.

7)  Our view

13.  We are of the view that the applicant’s documents consist of bare allegations without particulars or specifics.  The applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

14.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

15.  We see no basis to disturb the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.