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CACV 115/2024, [2024] HKCA 656
On Appeal From [2024] HKCFI 684
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 115 OF 2024
(ON APPEAL FROM HCAL NO 1400 OF 2019)
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BETWEEN
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QUIRANTE JACKIELON DE GUZMAN |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative
Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative |
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Interested Party |
_____________________
| Before: |
Hon Chow JA and S T Poon J in Court |
| Date of Judgment: |
6 August 2024 |
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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 K W Lung (“the Judge”) dated 14 March 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 21 May 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 January 2019.
BACKGROUND
2. The Applicant is a national of the Philippines. She last arrived in Hong Kong on 3 March 2018 to work as a foreign domestic helper with permission to remain until 12 October 2019[1] or within 14 days of its termination, whichever was the earlier. Her employment contract was prematurely terminated on 19 June 2018. She did not depart and overstayed in Hong Kong illegally since 4 July 2018[2]. On 19 July 2018, she surrendered to the Immigration Department. On 12 October 2018, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by (i) her abusive ex-partner Nelson, and (ii) a former mayor in her home district as the former mayor blamed her for spreading the news that Nelson was a drug user and for causing the former major to lose votes in an election[3]. Details of the Applicant’s claim have been summarised by the Judge at §§3-4 of the CALL-1 Form.
3. By a Notice of Decision dated 28 January 2019 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[4], BOR 3 risk[5], BOR 2 risk[6], and persecution risk[7].
4. The Applicant appealed the Director’s Decision to the Board. On 21 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 §§8-9 of the CALL-1 Form, as follows:
“[8] The Board recapped the [Applicant]’s personal background, and her claim at the hearing [5] – [23]. It first considered evidence relating to the threats from the Mayor, which were found to be illogical and inconsistent with data from country of origin information (‘COI’) [27] – [32]. The Board found it defied common sense that she would seek help from the Mayor when she was fully aware Nelson was his henchmen [27]. According to COI, there was also no election held in 2015 in her home village as alleged by the [Applicant] and the name of the Mayor provided by her did not participate in any elections since 2010 [30]. Therefore, the Board rejected she was at risk of harm from the Mayor.
[9] In relation to threats from Nelson, the Board was willing to consider the applicant’s risk of harm on the assumption the threats were real notwithstanding she was not an honest witness [33] and [34]. However, the Board found she was not at substantial risk of physical or mental harm from Nelson [36]. Furthermore, she did not report any of the domestic violence incidents to the police when COI indicated there was reasonable state protection [37] and [38]. In conclusion, the Board held she was not entitled to non-refoulement protection upon considering the factual basis of her claim under the applicable grounds.”
THE JUDGE’S DECISION
5. On 23 May 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. In the Form 86, she raised various complaints against the Board and the Director. The Judge summarised the Applicant’s complaints directed at the Board at §12 of the CALL-1 Form, as follows:
“(1) She considers the Board’s Decision is not reasonable in that it did not take into account the right to life issue.
(2) The Board was unfair to have placed too much weight on the [COI] without taking into account of her personal background or experience.
(3) The adjudicator was unfair for not accepting her explanation and unreasonably required her to respond to questions that she was not in a position to do so. The Board had also failed to take into account of the nexus of political parties and official corruption.
(4) The Board’s Decision is irrational.”
Since the Director’s Decision had been overtaken by the Board’s Decision, it was not reviewable. The Judge was correct to focus on the Board’s Decision as the subject matter of the application.
6. On 14 March 2024, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“[13] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the [Applicant]’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board…
[14] The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the [Applicant] confirmed that she understood the Board’s Decision and she was free to state her case before the Board. She further said that she wanted the Court to review the Board’s Decision.
…
[16] The [Applicant]’s grounds in paragraph 12 do not assist her application as they are her personal opinions without evidence in support; in particular ground (3) is untrue as she admitted that she was at liberty to give evidence before the Board at the hearing before me.
[17] The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”
THIS APPEAL
7. In her Notice of Appeal filed on 22 March 2024, the Applicant stated the following grounds of appeal:
“[The Applicant] will face hardship if he is to return back to his 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 21 May 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 is a fresh application for judicial review (see Nupur Mst, at §14(6)).
10. Further, the assessment of evidence, COI, 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 of 14 March 2024, and has failed to 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.
(Anderson Chow)
Justice of Appeal
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(S T Poon)
Judge of the Court of
First Instance
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The Applicant, acting in person
[1] The Director’s Decision at §8.
[2] The Director’s Decision at §8; the Board’s Decision at §2.
[3] The Board’s Decision at §§16-17.
[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[5] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[6] 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.
[7] 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.
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