PANDURO JEAN MOSQUEDA v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 516/2021

[2022] HKCA 204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 516 OF 2021

(ON APPEAL FROM HCAL 668 OF 2019)

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JUDGMENT

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

1.  This is an appeal against the order made by Deputy High Court Judge K W Lung (“the Judge”) on 9 November 2021 refusing leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 1 March 2019. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 9 March 2018 rejecting the Applicant’s non-refoulement claim.

BACKGROUND

2.  The Applicant is a national of the Philippines.  She came to Hong Kong as a foreign domestic helper and was permitted to remain until 28 November 2015.  She overstayed and surrendered herself to the Immigration Department on 18 April 2016.  She lodged her non-refoulement claim by way of written submission on 8 December 2016.

3.  The Applicant claims that if refouled to the Philippines, she will be at risk of being harmed or killed by a man named Roy Uy and his hired agents because (i) she was, allegedly, a member of Liberal Political Party while Roy Uy was a member of a rival party called Laban Democratikong Partido, and (ii) she witnessed the killing of her friend by Roy Uy’s follower.  Details of the Applicant’s claim have been summarised by the Judge at §§4-5 of the CALL-1 Form ( [2021] HKCFI 3244).

4.  By a Notice of Decision dated 9 March 2018, the Director rejected the Applicant’s non-refoulement claims on all applicable grounds: torture risk[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

5.  The Applicant appealed against the Director’s decision to the Board and attended a hearing on 11 September 2018 before the Board.

6.  On 1 March 2019, the Board rejected the Applicant’s appeal and affirmed the Director’s Decision (“the Board’s Decision”).  The Board identified various discrepancies between her claim before the Board and that before the Director. The Board was not satisfied that the Applicant had discharged her burden of establishing that she faced a real risk of harm that would warrant international protection, now or in the reasonably foreseeable future, if she were refouled to the Philippines.  The Board considered the alleged risk of harm to the Applicant, if she were refouled to the Philippines, to be far-fetched and fanciful.  The Board also rejected her late claim about potential risk of harm from her husband, which the Board considered to have been concocted by the Applicant to improve her chances on the appeal.  The Board further found that the Applicant would have no problem relocating to other parts of the Philippines (see Board’s Decision at §§43-50). Accordingly, the Applicant’s claim for non-refoulement protection failed on all applicable grounds.

THE JUDGE’S DECISION

7.  On 8 March 2019, the Applicant filed a Form 86 and a supporting affirmation seeking leave to apply for judicial review against the Board’s Decision.  In her affirmation in support, the Applicant stated that she did not agree with the Board’s decision, and her life in her homeland was in danger.

8.  On 9 November 2021, the Judge refused to grant leave to the Applicant to apply for judicial review.  The Judge’s reasons for his decision are as follows:

“[15] The Board had assessed her evidence and came to its conclusion that it rejected her evidence on the important facts in support of her claim. She does not have any factual basis for her claim. Her grounds in support of her application do not assist her. To say that the adjudicator was insensible to her situation is only her opinion without any evidence in support of it. Her reason for refusing to return to her own country is that she refused to join LDP. The Board rejected her evidence on this factual issue. As she did not commit any offence, it is hard to say that she will live like a fugitive if she relocates herself to live some other places in Philippines.

[16] 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.

[17]  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

THIS APPEAL

9.  In her Notice of Appeal dated 19 November 2021, the Applicant wrote that she would be in grave danger if she returned to the Philippines.

10.  In her 4-page Skeleton Argument dated 10 January 2021, the Applicant states, under Ground 1, the following: “I refer to the comments made by the Judge over my extended delay and the reason for performing the Judicial Review while being detained (point 13, 14).” 

11.  The other Grounds stated in the Applicant’s Skeleton Argument relate to some further evidence in support of her claim that it would be unsafe for her to return to the Philippines.  She also says that the possibility of relocation in the Philippines is a “myth”, and repeats that her case arose out of some political problems.

12.  At the hearing of this appeal on 15 February 2022, the Applicant had nothing to add.

DISCUSSION

13.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

14.  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. Assessment of evidence and COI materials and 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.

15.  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 this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.  No viable ground of appeal has been put forward by the Applicant.  In relation to “Ground 1” mentioned in the Applicant’s Skeleton Argument dated 10 January 2022, there is in fact nothing in the Judge’s decision dated 9 November 2021 which refers to any delay on the part of the Applicant, or mentions that the Applicant was under detention. The Applicant has failed to show any error of law or failure by the Judge to take into account relevant matters already placed before him, or show that the Judge’s decision is otherwise plainly wrong.  That being the position, the present appeal has no merits, and is dismissed.

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.