LOPEZ RONALD GUINTO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION

CACV 549/2019

[2020] HKCA 348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 549 OF 2019

(ON APPEAL FROM HCAL NO 1681 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) on 28 November 2019.

Background

2.  The applicant is a national of the Philippines. He entered Hong Kong on several occasions in 2015 and upon his last entry he did not depart and overstayed.  He surrendered himself to the Immigration Department on 18 February 2016 and then lodged a non-refoulement claim on 5 January 2018. 

3.  The applicant’s claim was based on the fear that, if refouled, he would be harmed or killed by (i) his paternal relative and their associates due to a family land dispute; (ii) ex-general Johnny Daquioag and his associates as his brother-in-law, who was also his relative, was killed by the applicant’s paternal uncle as a result of a fight arising from the said land dispute in 1990; and (iii) members of New People’s Army who offered shelter to the applicant but he left their protection secretly and without permission.  The brief facts of this case were summarized by the Judge in [1]-[7] of the CALL-1 form ([2019] HKCFI 2572).

4.  By a notice of decision dated 24 January 2018, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds.  The decision covered the BOR 2 risk[1], BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

5.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s decision.  An oral hearing was held on 28 May 2018.  The Board made a finding that the applicant’s family are not and never have been involved in a land dispute in the Philippines.  The Board did not believe that the brother-in-law of the ex-general Daquioag was killed by his uncle and his father was not injured in the fight in 1990.  The Board also did not accept that the applicant’s uncle was shot to death in 2015 and therefore the applicant was not threatened with being killed by his relatives after the claimed death of his uncle.  The Board did not believe that the applicant’s father was hiding in the Philippines.  The Board concluded that the applicant had fabricated his claim to support his non-refoulement application in Hong Kong.  By a decision dated 6 August 2018, the Board determined the appeal against the applicant. 

The Judge’s decision

6.  The applicant filed a Form 86 and an affirmation in support on 20 August 2018, he filed a further affirmation on 4 February 2019 exhibiting the Board’s decision.  The applicant did not state any grounds of appeal in the Form 86 or the affirmations.  

7.  Although there were no grounds relied on by the applicant in support of his application for judicial review, the Judge did examine and scrutinize the Board’s decision to ascertain whether it made any errors of law and whether it analysed the appeal/petition with a high standard of fairness.  The Judge also considered whether the application of the enhanced Wednesbury test was satisfied. 

8.  After examination and scrutiny of the decision of the Board, the Judge found no failings on the part of the Board.  The Judge found no errors of law nor any evidence of procedural unfairness.  Accordingly, there is no realistic prospect of success and the Judge refused to grant leave to the applicant to apply for judicial review on 28 November 2019 (“the Decision”).

The Appeal

9.  On 2 December 2019, the applicant filed a notice of appeal against the Decision.  He stated in the notice that the Director disregarded his dangerous situation. 

10.  In compliance with the directions of the court, the applicant lodged his skeleton submissions on 9 March 2020.  The applicant’s grounds of appeal contained in his skeleton submissions may be summarized as follows:

(a)  The Board and the Judge were in a lack of sensitivity of the applicant’s situation in the sense that they misunderstood one of the applicant’s assertions that his father did not go out of the farm but then he worked as a bodyguard of a mayor (“the Assertion”). The applicant clarified that not letting his father to go out of the farm does not mean that he did not go out to other places.  Allegedly, due to the misunderstanding of the Assertion, the Board and the Judge came to the conclusion that the applicant’s testimony was inconsistent.

(b)  The applicant put forward references to certain human rights reports in his skeleton submissions to show that there were unlawful killings by the police and the authority in the Philippines so he would be unsafe to return to the Philippines.

(c)  Relocation would deprive him the way to live like a normal human being.

11.  We heard the appeal on 19 May 2020. At this hearing, the applicant confirmed that he had nothing further to add to what had already been set out in the Notice of Appeal and Written Submission.

Discussion

12.  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.

13.  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.

14.  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.

15.  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).

16.  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.

17.  The only complaint of the applicant against the Judge was the alleged misunderstanding on the Assertion. Having considered the Board’s reasoning at paragraphs 32 to 35 of its Decision, we are not satisfied that the Board had misunderstood the applicant. Further, the applicant did not raise any allegation of misunderstanding in his Form 86. The applicant did not elaborate on how this alleged misunderstanding may affect the Judge’s decision to refuse leave.  In view of the Judge’s reasons for her decision, we can see no bearing of the alleged misunderstanding on the Judge’s decision.  As explained repeatedly, evaluation of the claim and evidence and assessment of its merits is a matter for the Director and the Board, who are the primary decision makers which this Court will not interfere unless they are reversible on the public law grounds.

18.  In any event, there were many other inconsistencies in the applicant’s evidence found by the Board which rendered the applicant’s evidence not credible and truthful.

19.  The applicant failed to identify any viable grounds to challenge the Judge’s decision.  All other grounds in the Notice of Appeal and Skeleton Submission were against the decision maker, i.e., the Board and the Director, which had been addressed by the Judge.  Thus, in absence of any identified viable grounds advanced by the applicant against the Judge’s decision, we dismiss this appeal.

20.  In any event, we have reviewed both the Board’s Decision and the 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 Judge’s decision. 

21.  For these reasons, we dismiss the appeal.