RE VARGAS ARNELYN VICENTE

CACV 302/2020

[2021] HKCA 108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 302 OF 2020

(ON APPEAL FROM HCAL 1970 OF 2018)

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J U D G M E N T

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

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 14 July 2020 refusing her leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 1475.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 13 July 2018 (“the Board’s BOR2 Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 17 May 2017 (“the Director’s BOR2 Decision”) rejecting the applicant’s non-refoulement claim on BOR2 risk[1].

3.  The applicant filed her Notice of Appeal on 27 July 2020. On the same date, the applicant gave consent to the appeal being heard by a two-member court.

A.  Background

4.  The applicant is a national of the Philippines.  She came to Hong Kong as a domestic helper on 17 April 2009 and overstayed after her employment contract was terminated on 23 December 2009.  She surrendered to the immigration department on 23 October 2014 and lodged a non-refoulement claim on 20 November 2014.

5.  The details of the applicant’s claim and her personal background were set out in paragraph 6 of the decision of the Director dated 20 May 2015 (“the Director’s First Decision”), and paragraphs 25 - 33 of the decision of the Board dated 23 February 2017 (“the Board’s First Decision”).

6.  The applicant claimed that, if refouled, she would be harmed or killed by the first wife of her husband, Melissa, who also threatened to sue her for bigamy.  The applicant claimed to have been married to her husband legally in 1991.  In around 2004, she came to work in Hong Kong for financial reason.  In December 2006, she returned home and received a letter from Melissa who threatened to kill her as the applicant was the husband’s second wife and thus guilty of bigamy.  The applicant believed the reason of Melissa’s threats was that the applicant and her children would inherit the husband’s estate.  In April 2009, while she was hospitalized for a surgery, she received flowers which were only used for funerals and contained threatening messages.  Out of fear, she fled to Hong Kong for protection.

B.  The Director’s Decisions and the Board’s Decision

7.  The Director assessed the BOR3 risk[2], the persecution risk[3], and the torture risk[4] in the Director’s First Decision while the Director’s BOR2 Decision assessed the applicant’s claim on BOR2 risk.  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.  The applicant appealed the Director’s First Decision to the Board.  A hearing for the appeal was held on 28 July 2016, during which the applicant answered questions from the Board.  Having considered the oral evidence and the materials before it, by way of the Board’s First Decision, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed her appeal.

9.  The Board found that the applicant’s claim was unsupported by any evidence and it was a private dispute without state involvement.  Further, internal relocation was available to the applicant (paragraphs 44 - 49 of the Board’s First Decision).

10.  Subsequently, the applicant lodged an appeal against the Director’s BOR2 Decision.  Since there were no new materials or facts presented by the applicant, the Board decided to dispose of the appeal on papers.  After considering the evidence and the applicable legal principles, in light of the factual findings in the Board’s First Decision, the Board found that the applicant failed to establish a claim under BOR2 risk.  Thus, the Board also dismissed the applicant’s appeal against the Director’s BOR2 Decision.

C.  The Deputy Judge’s Decision

11.  The applicant filed a Form 86 on 19 September 2018 seeking leave to apply for judicial review against the Board’s BOR2 Decision.  In her supporting affirmation filed on the same date, she advanced the following grounds of review, which were summarized by the Deputy Judge at paragraph 13 of the Deputy Judge’s Decision:

“13.  On 19 September 2018 the Applicant filed her Form 86 for leave to apply for judicial review of this second decision of the Board, and in her supporting affidavit of the same date she put forward the following grounds for her intended challenge:

(1)  procedural impropriety in failure to conduct sufficient inquiry into the relevant country of origin conditions;

(2)  procedural impropriety/irrationality in failure to conduct oral hearing for her BOR 2 claim or to provide her sufficient opportunity to present her claim;

(3)  error/misdirection in law in failure to take into account the considerations of psychological strain and threats to her personally or threats directly to kill her; and

(4)  that there was no sufficient basis to conclude that she would not be at risk of being subjected to any kind of life risk upon refoulement.”

12.  After hearing the applicant on 16 January 2020 and considering the materials before him, the Deputy Judge refused to grant leave to the applicant to apply for judicial review against the Board’s BOR2 Decision for reasons stated at paragraphs 14 - 20 of the Deputy Judge’s Decision:

“14.  These are however mainly just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and I do not find any of them reasonably arguable for her intended challenge.

15.  As for her complaint that her BOR 2 claim was assessed without any oral hearing either before the Director or the Board, the Court of Appeal has already held that there is no absolute right to an oral hearing as the question must depend on the standard of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: ST v Betty Kwan [2014] 4 HKLRD 277 at paragraph 26.

16.  On the facts of the Applicant’s claim and in the light of the scope and threshold of a BOR 2 claim, as correctly found in the second decisions of both the Director and the Board, there is simply no room for engaging the BOR 2 ground, and no useful purpose would be served by an oral hearing, and I do not find their decisions not to hold an oral hearing amount to any procedural unfairness or breach of the high standard of fairness, as the Applicant has not identified, nor did she at the hearing before me, what additional facts or grounds that she would have put before the Director or the Board at an oral hearing that could advance her case under BOR 2 risk. As such I do not find this ground reasonably arguable either.

17.   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 or her 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.

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

19.  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.

20.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

D.  Grounds for appeal

13.  The applicant’s grounds of appeal in her Notice of Appeal were that:

“1. Failure to consider my fear that I would be face real risk by my enemies if I return to my country where my life will be at danger upon refoulement.

2. Failure to consider the country OF origin conditions (COI) information into the country OF origin.

3. Failure to consider my claim under BOR2 risk.” [sic]

14.  Pursuant to Master Tsui’s directions dated 9 November 2020, the applicant filed her written submissions on 18 December 2020.  Her arguments can be summarized as these: (a) the Board and the Director failed to make sufficient inquiries into the country of origin information which resulted in a failure to adhere to a high standard of fairness; and (b) the Board and the Director failed to take into account her fear and the fact that she suffered severe mental distress.

15.  At the hearing, the applicant confirmed that she had nothing further to add to what have already been set out in the Notice of Appeal and the written submissions.

E.  Discussion

16.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

17.  First, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

18.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

19.  Third, 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, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

20.  In light of the above, 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.

21.  Bearing these principles in mind, we are of the clear view that this appeal has no merit.

22.  First, the grounds and arguments advanced in the Notice of Appeal and the written submissions are all related to the Director’s Decisions and the Board’s BOR2 Decision, which were considered but rejected by the Deputy Judge.  The applicant has not identified with any particularities as to why the Deputy Judge is wrong in rejecting these arguments.  These are not viable grounds of appeal.  On this basis alone, the appeal should be dismissed.

23.  Second and in any event, we have reviewed both the Board’s BOR2 Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

F.  Disposition

24.  For all the reasons given above, we dismiss the appeal.