RE LUCERO ELVIRA OLPINDO

CACV 369/2024, [2025] HKCA 36

On Appeal From [2024] HKCFI 2230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 369 OF 2024

(ON APPEAL FROM HCAL NO 1796 OF 2019)

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J U D G M E N T

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Hon Cheng J (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 12 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 3 June 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 8 November 2018.

BACKGROUND

2.  The Applicant is a national of the Philippines. She last arrived in Hong Kong on 2 January 2016 to work as a foreign domestic helper. Her employment contract was prematurely terminated on 14 August 2017. She overstayed illegally since 29 August 2017. On 4 September 2017, she surrendered herself to the Immigration Department. On 3 January 2018, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her husband (Lucero Miguel Mifa) because she discovered that her husband had an extra-marital affair with another woman. Details of the Applicant’s claim have been summarised by the Judge at §§3-6 of the judgment dated 12 September 2024 (“the Judgment”).

3.  By a Notice of Decision dated 8 November 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 3 June 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 §§11-13 of the Judgment, as follows:

“[11] The Board found the [Applicant] gave inconsistent and conflicting evidence regarding (i) how she learnt about the extramarital affair of her husband [44]; (ii) her living arrangements when she returned to the Philippines in 2011 [45]; (iii) her encounters with her husband during 2011 to 2013 when she resided in the Philippines [46]; (iv) the circumstances of the gun pointing incident [47]; (v) whether she made a report to the village chief [48] and (vi) the aftermath of the gun pointing incident until she left for Hong Kong in January 2015 [49].

[12] The Board accepted that the [Applicant’s] husband might have had an extramarital affair. However, the Board found that the [Applicant] and her husband had separated since 2010, after which she had not experienced any problem with him, including the claimed regular fighting between 2011 and 2013, the gun pointing incident, the fighting after the gun pointing incident until she left for Hong Kong and the harassment/threats she received while in Hong Kong [52]. As such, the [Applicant] should not face a real risk of serious harm upon return to the Philippines [53]-[54].

[13] The Board concluded that that the [Applicant’s] case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [12]-[28], [61]-[65]. Furthermore, internal relocation would also be available according to the country of origin information [55]-[60].”

THE JUDGE’S DECISION

5.  On 28 June 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, the Applicant alleged that the Board acted in breach of procedural fairness in refusing her appeal. In her supporting affirmation of the same date, she elaborated on her grounds of intended challenge, which were summarised by the Judge at §16 of the Judgment, as follows:

“(1) she was not given a chance, nor was she advised to make final submissions to the Board;

(2) the Board relied on the source of news which is not officially recognized or it is simply hearsay; and

(3) the Board had made groundless speculation that it is safe for her to return to her country of origin.”

6.  On 12 September 2024, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[17] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the [Applicant’s] appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…

[18] The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the [Applicant’s] said the Board did not understand her situation and relocation in her country.

…

[20] For the reasons given above, the Board rejected the [Applicant’s] evidence and found that she will not be subjected to any harm if she returns to her country.

[21] Those reasons under paragraph 16 are not valid reasons to challenge the Board’s Decision. She was at liberty to make submissions at the end of the hearing before the Board. The other grounds are simply her opinions without any evidence in support. There is no reason for this Court to interfere with the Board’s Decision.

[22] The [Applicant] therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.”

THIS APPEAL

7.  In her Notice of Appeal dated 13 September 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 written submissions in support of her appeal in accordance with the directions given by the Registrar of Civil Appeals on 14 October 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 a non-refoulement case, 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, 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.