RANACO ANA MARIE RICO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 417/2024, [2025] HKCA 81

On Appeal From [2024] HKCFI 2571

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 417 OF 2024

(ON APPEAL FROM HCAL NO 1838 OF 2019)

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J U D G M E N T

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

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge Reuden Lai (“the Judge”) dated 24 September 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 31 May 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 October 2018.

BACKGROUND

2.  The Applicant is a national of the Philippines. She last arrived in Hong Kong as a visitor on 22 December 2014 with permission to stay until 25 December 2014. She did not depart upon the expiry of her limit to stay, and had overstayed since 26 December 2014. On 26 February 2016, she surrendered herself to the Immigration Department. On 3 February 2017, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her former partner (Ruben B Valenzona) (“R”), who had abused her in the past. Details of the Applicant’s claim have been summarised by the Judge at §§4-8 of the CALL-1 Form.

3.  By a Notice of Decision dated 30 October 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4].

4.  The Applicant appealed the Director’s Decision to the Board. On 31 May 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§24-28 of the CALL-1 Form, as follows:

“[24] In §§30-52 of the Board’s Decision, the Board discussed the evidence given by the Applicant at different stages of the non-refoulement proceedings including oral evidence given at the hearing before the Board. The Board found that multiple and cumulatively significant aspects of her evidence casted doubt on her claims to face a real chance of torture, serious harm or death from R in the Philippines in the reasonably foreseeable future.

[25] The Board accepted that she suffered domestic violence from R but that stopped after she left him in mid-2014.

[26] The Board doubted whether R had the intention or means to locate the Applicant upon her return. It noted that she left R to live with her grandparents for five months before coming to Hong Kong and that she did not encounter R during this period. It was also her own evidence that R did not visit their children after 2015, despite the fact that he knew their address. Further, according to the Applicant, R had only asked their children to provide her phone number on one occasion. R did not manage to get her number and he had had no contact with her for many years.

[27] On the evidence before the Board, the Board did not accept that the Applicant faced a real chance of harm of any kind from R should she return to the Philippines.

[28] The Board further found that even if it was wrong in the above finding and that R did indeed pose a real risk of harm to the Applicant, she could avoid R by relocating to Metro Manila. With her age, education, working experience and potential financial support from her brother in Hong Kong, it would not be unduly harsh to expect her to relocate.”

THE JUDGE’S DECISION

5.  On 2 July 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of a decision by the Board purportedly made on 12 November 2018, naming both the Director and the Board as the proposed respondents. No ground for seeking relief was given in the Form 86. In her supporting affidavit, the Applicant asked to be allowed to stay in Hong Kong because she would be harmed or killed if she returned to the Philippines. Annexed to her supporting affidavit was a copy of the Board’s Decision. The Judge correctly focused on the Board’s Decision as being the subject matter of the leave application.

6.  On 24 September 2024, the Judge refused to grant leave to the Applicant to apply for judicial review, for the following reasons:

“[36] No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affidavit. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the [Director’s] Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

[37] Having rigorously examined the Board’s Decision and the [Director’s] Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the [United Screening Mechanism (‘USM’)]; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness.

[38] The Board did not accept that the Applicant would face a real chance of harm of any type from R in the Philippines should she return there. In the alternative, should a real chance of harm arise, the Board found that the Applicant could safely relocate within Metro Manila without undue hardship.

[39] It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Board’s Decision is without fault. The proposed judicial review is not reasonably arguable.

[40] At the court hearing of 5 September 2024, the Applicant said that she disagreed to the finding of the Board on viability of internal relocation. She said that she would not be safe in any places in the Philippines and R could find her because despite the Philippines being a large country, it was easy to travel by boat in the Philippines to different places.

[41] The Applicant further informed the court that she had relocated her children in the Philippines for about one year and R had not contacted her children since then. However, she still worried that R might find them in future.

[42] The Applicant’s challenge against the Board’s finding on viability of internal relocation is without merits. The fact that R was unable to locate the Applicant’s children after their relocation for a year serves to confirm the finding of the Board on viability of internal relocation to tackle the Applicant’s feared harm from R. In any event, challenge to findings of fact of the Board is not permissible in a judicial review unless the findings concerned have been tainted by errors of law, procedural unfairness or irrationality, which does not occur in this case.

Conclusion

[43] In the premise and having considered the Board’s Decision and the [Director’s] Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.”

THIS APPEAL

7.  In her Notice of Appeal filed on 4 October 2024, the Applicant stated the following grounds of appeal:

“[The Applicant] will face hardship if [she] is to return back to [her] home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” [sic]

8.  The Applicant has failed to lodge any written submissions in support of her appeal contrary to the directions given by the Registrar of Civil Appeals on 4 December 2024. Accordingly, she is deemed to have waived the right to have an oral hearing of her appeal and elected to have her appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

DISCUSSION

9.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board or Director’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst, at §14(6)).

10.  Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

12.  The Applicant’s appeal against the Order has no merit, and is dismissed.