RE FLORES MARITES EVANGELISTA

CACV 157/2020

[2021] HKCA 437

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 157 OF 2020

(ON APPEAL FROM HCAL NO. 29 OF 2019)

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J U D G M E N T

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The Court:

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung given on 3 June 2020 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)/adjudicator of the Non-Refoulement Claims Petition Office dated 19 December 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 17 February 2015 and 15 May 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines.  She entered Hong Kong on 10 November 2012 to take up work in Hong Kong.  She was arrested on 20 December 2012 on suspicion of making a false representation to an Immigration Officer and for committing other offences.  She was convicted and sentenced to 5 months of imprisonment on 30 December 2013.  She lodged a non-refoulement claim on 29 January 2014. 

3.  The applicant’s claim was based on threats from a group of gangsters arising out of her brother’s outstanding loan.  The details of the applicant’s claim have been summarised by the judge at [3] to [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 17 February 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 15 May 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against her.

6.  The applicant appealed to the Board.  After a hearing on 9 October 2018, the Board dismissed the appeal on 19 December 2018 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [93] – [96] of the Board’s Decision, the Board rejected all of the applicant’s claims, including the claims that her brother borrowed money from loan sharks, that her family was visited by armed men and the claim that she received threatening text messages from criminals.  The Board held at [97] that the applicant will not be targeted by any criminal upon her return to the Philippines.

The judge’s decision

8.  The applicant filed a Form 86 on 4 January 2019 which contained the following grounds for judicial review:

(1)  the Board unlawfully fettered its discretion by refusing the appeal on the ground that they did not satisfy the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with the appeal;

(3)  the Board’s Decision was unreasonable or irrational in the public law sense, or was the result of procedural errors or unfairness;

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  the Board misdirected itself on the law by considering that the applicant has to experience torture in the past in order to establish substantial grounds for believing that a risk of torture exists;

(6)  procedural impropriety/unfairness in the Board’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of her claim;

(7)  irrationality in the Board’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of her claim;

(8)  irrationality in the Board’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in the Philippines;

(9)  irrationality in the Board’s failure to analyze and assess whether state protection exists and misdirected itself as to the extended meaning of state protection;

(10)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(11)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(12)  procedural impropriety/unfairness by the Board in applying the incorrect standard of proof in its decision; and

(13)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.

9.  In her affirmation in support of the leave application dated 4 January 2019, the applicant advanced the following grounds for judicial review:

(1)  the hearing bundle for the hearing before the Board was provided at a late stage.  Owing to the lack of translation and legal representation, the applicant could not prepare well for the hearing;

(2)  the unfair hearing led the Board to wrongfully question her credibility;

(3)  the Board had significantly relied on sources of news which were not officially recognized or were simply hearsay, causing the Board to speculate that it was safe for her to return; and

(4)  the Board gave its decision on BOR 2 risk before this claim was screened by the Director.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to grant leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [12] to [18] of the CALL-1 Form:

“12. The applicant appeared before me and she confirmed that she was free to express herself before the immigration officer and the Board. She can read English herself and she understands the Decisions.

13. I also put the Board’s findings to her and asked her if she had any comments on them. She said that she did not have any comments.

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held

“13. (1) …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. The Court of Appeal in Re: Moshsin Ali, [2018] HKCA 549 (CACV 54/2018) at §42 held that the Board’s decision is final, subject to judicial review by the court. However, there is no evidence to show that the Board erred in its finding of the facts or in the application of the laws to the case.

16. Grounds (1) and (2) are inconsistent with what she said before me. Grounds (3) and (5) are her opinions without any evidence in support of them. Ground (4) will not support her application because the Director had already given her an interview with the immigration officer for the other risks other than BOR 2 risk under section 37 ZB of the Ordinance. The applicant is unable to identify why an interview on BOR 2 risk is necessary, given the fact that she had already given the facts of her case to the immigration officer in the previous interview. The Director did not find it necessary to clarify her evidence for BOR 2 risk. See Afsar Khan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration [2019] HKCA 751, 10 July 2019.

17. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

18. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for the intended judicial review. Accordingly, I dismiss her application.”

Grounds for appeal

11.  In the Notice of Appeal dated 8 June 2020 and the affirmation filed on the same day, the applicant contended that:

“the [judge] was wrong in law in holding that there was no state acquiescence or involvement.

the [judge] failed to provide detailed reason in support of this decision.”

12.  The applicant failed to comply with the direction made by this court on 22 September 2020 requiring her to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.  The hearing date on 15 December 2020 was therefore vacated and the applicant was debarred from lodging any written submissions.  We will deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

13.  For the ground of appeal based on state acquiescence, we note that the Board dismissed the appeal because of the quality of the applicant’s evidence.  The Board found that none of the claims by the applicant was believable and the applicant was therefore not at risk from any of the proscribed harms upon returning to the Philippines.  In the circumstances, the issue of state acquiescence or involvement is not at issue and this ground of appeal is therefore bound to fail.

14.  As for the ground of appeal based on the lack of reasons by the judge, this ground lacked particulars and is therefore bound to fail for this reason alone. 

15.  We have also considered in detail the grounds for judicial review advanced in the court below.  All of those grounds are in broad terms and lacked particulars. The applicant failed to identify any substantial ground for establishing any public law error in the Board’s Decision, particularly the evaluation of the applicant’s evidence by the Board.  We are therefore of the view that none of the grounds for judicial review was reasonably arguable.

16.  There is therefore no merit in the appeal and we dismiss it accordingly.