MORARENG DINAH ANANGA alias GUINANOY DINAH MORARENG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 168/2024, [2024] HKCA 928

On Appeal From [2024] HKCFI 1121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 168 OF 2024

(ON APPEAL FROM HCAL NO 389 OF 2019)

____________________

____________________

____________________

JUDGMENT

____________________

Hon B Fung J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge To (“Judge”) on 22 April 2024[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 25 January 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 30 April 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines born in 1977.  She previously entered Hong Kong as a visitor on 22 October 2009 and was later arrested by the police on 8 October 2011 for overstaying.  The applicant subsequently raised a torture claim.  She wrote to withdraw her claim on 14 February 2012 but subsequently wrote to request to re-open her claim on 29 February 2012.  The applicant wrote to withdraw her claim again on 21 September 2012 and she was voluntarily repatriated to the Philippines on 4 October 2012. 

3.  The applicant last entered Hong Kong as a visitor on 20 August 2016 and was permitted to remain until 3 September 2016.  She applied for extension of visitor visa and was allowed to stay until 17 September 2016.  The applicant overstayed and was arrested by the police on 30 December 2016.  She raised her non-refoulement claim by way of written representations dated 31 December 2016, 10 February 2017 and 4 March 2017.  The applicant’s claim was made on the basis that if she returned to the Philippines, the New People’s Army (“NPA”) would harm or kill her due to her witnessing their murder of her father.  The factual background of the applicant’s claim was set out at [11] of the Board’s decision.

4.  By notice of decision dated 30 April 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] 

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 7 January 2019, during which the applicant gave evidence and answered questions from the Board. At the oral hearing, the applicant confirmed and adopted all her previous written representations without any amendments or additions.  After consideration of the evidence as a whole, the Board did not accept the applicant to be a credible witness.  It found that her written and oral evidence showed issues of inconsistencies, omissions and credibility.  The Board did not accept any of the claimed past incidents of the applicant, including the alleged interactions between her family and the NPA, the alleged circumstances of her father’s death and the applicant being caught up in tribal war.   

6.  The Board proceeded to consider the risk of harm faced by the applicant if she was refouled to the Philippines.  It found that there was in fact no real risk of harm if the applicant returned to the Philippines, because none of her claims were accepted to be true.  In light of the Board’s factual findings in the above, the issue of internal relocation would not arise but it considered this issue nonetheless.  Based on the available information, COI and evidence, it found that internal relocation was a viable option without undue hardship. 

7.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to the Philippines.  By its written decision dated 25 January 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

8.  On 12 February 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  She did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, she simply stated that she was not satisfied with the Board’s decision, that she had a problem in her own country and that she wanted to stay in Hong Kong until her problem was solved.  She further annexed the Board’s decision.

9.  The Judge considered the application on the basis of the documents and the applicant’s oral submissions at the hearing held on 20 March 2024.  On 22 April 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [19] to [23] of the Form CALL-1 as follows:

“ 19. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

20. The Applicant did not advance any grounds for judicial review in the Form 86. In her supporting affirmation, the only complaint she raised was that she was not satisfied with the decision of the Board. She had been invited by the Court via its letter dated 22 December 2021 to advise the Court of her first language and to file submissions. She responded but did not file any submissions. The essence of her complaint is that she disagreed with the finding of the Board that it is safe for her to return to her home country. In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to the Philippines. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

21. After the legal principles in the preceding section was explained to her, the Applicant confirmed that she had no complaint about errors of law, procedural unfairness and irrationality. She understood she could not challenge the Board’s finding of fact except on these three basis. She only wished the Court to review the Decisions by reconsidering her claim. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

22. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

23. The Board found the Applicant’s evidence incredible and rejected the entirety of her case. She had therefore failed to establish the factual basis to support her claim for protection, ie that she will be at risk of harm from the tribal war or the NPA if returned to the Philippines. As she bears the burden of proof, albeit on a low standard, this finding is necessarily fatal. The Board did not dismiss her appeal simply on that basis. It went further and found even on the basis of her evidence, the Applicant had failed to prove as a matter of law her entitlement to non-refoulement protection under any of the four applicable grounds. These are mixed finding of facts and of law. Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as they are finding of the law, they are absolutely correct. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Furthermore, on the basis of authoritative and credible country of origin information, the Board is satisfied that adequate state protection and internal relocation are available to prevent or avoid the risk if it turned out to be real. These are also finding of fact which the Court on a judicial review will not interfere. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.”

Appeal to this Court

10.  On 29 April 2024, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated ground of appeal was that she did not want to return home yet because her life was still in danger. 

11.  As the applicant did not lodge any written submissions, the scheduled hearing of her appeal was vacated pursuant to the directions of the Court.  As such, we shall accordingly determine the appeal on the basis of the available documents and materials.

Discussion

12.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

13.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it did not accept any of the applicant’s claims to be credible.  Despite its factual findings, the Board proceeded to consider that internal relocation would be viable for the applicant.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. We agree with the analysis of the Judge at [23]. 

14.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  In fact, the applicant confirmed to the Judge that she did not have any complaint about errors of law, procedural unfairness or irrationality at [21].  We are not satisfied that there is any error in the Judge’s decision.

15.  The applicant’s appeal is accordingly dismissed.

[1]  [2024] HKCFI 1121.

[2]  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).

[3]  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 and its 1967 Protocol.

[4]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[5]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).