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CACV 125/2023, [2023] HKCA 799
On Appeal from [2023] HKCFI 1015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 125 OF 2023
(ON APPEAL FROM HCAL 1194 OF 2019)
________________________
| RE |
BALLESTEROS SHIRLEY MAGLALANG |
Applicant |
________________________
| Before: |
Hon Kwan VP and Lisa Wong J in Court |
| Date of Hearing: |
27 June 2023 |
| Date of Judgment: |
5 July 2023 |
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J U D G M E N T
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Hon Lisa Wong J (giving the Judgment of the Court):
THE APPEAL
1. This is an appeal by the applicant, a national of the Philippines now aged about 53, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 20 April 2023 (“Judge’s Decision”), refusing her leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decisions of the Torture Claims Appeal Board (“Board”) given on 24 February 2017 and 18 April 2019 (“Board’s 1st Decision” and “Board’s 2nd Decision” respectively and “Board’s Decisions” collectively), which dismissed the applicant’s appeals against the rejections by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”). Such rejections were embodied in, and communicated to the applicant by, a notice of decision dated 29 April 2015 and a notice of further decision dated 5 July 2017 (“Director’s 1st Decision” and “Director’s 2nd Decision” respectively and “Director’s Decisions” collectively).
BACKGROUND
Overstay in Hong Kong and lodgement of NRF Claim
2. The applicant last arrived in Hong Kong on 13 October 2008 as a visitor. She did not leave upon the expiry of her visa. She subsequently overstayed for about 4 years until she surrendered to the Immigration Department on 7 November 2012. She was charged with, and convicted of, breaching her conditions of stay, for which she was sentenced to imprisonment for 4 months.
3. Upon her release from prison and referral to the Immigration Department for deportation, the applicant raised the NRF Claim by written representation on 8 March 2014. She subsequently completed and lodged a non-refoulement claim form dated 21 October 2014 (“NCF”), with the assistance of the Duty Lawyer Service.
4. The basis of the NRF Claim is the applicant’s fear of being harmed or killed by her husband over her extramarital affair in Hong Kong.
5. The circumstances giving rise to such alleged fear have been set out in detail in paragraphs 6.1 to 6.16 of the Director’s 1st Decision and in gist in [2] to [5] of the Judge’s Decision embodied in the Form CALL-1 dated 20 April 2023 [2023] HKCFI 1015 (“Form CALL-1”).
Director’s Decisions
6. After considering the information provided by the applicant in the NCF and at the screening interview on 4 March 2015, the NRF Claim was found by the Director’s 1st Decision to be unsubstantiated under 3 applicable grounds for non-refoulement protection namely, torture risk[1], persecution risk[2] and “BOR 3” risk[3]. By the Director’s 2nd Decision, the NRF Claim was further found to be unsubstantiated for “BOR 2” risk[4].
7. In gist, taking into account the facts that the applicant had been hurt only once by her husband in around October 2008 when they were still living together and that the applicant had only received verbal threats from her husband when her extramarital affair came to light in 2012, the Director assessed the risk of harm to the applicant from her husband upon her return to the Philippines to be low. In any event, the past ill-treatment inflicted upon the applicant by her husband has not attained the requisite minimum level of severity. Further, the applicant’s problem with her husband is purely a private dispute. Lastly, any perceived risk of harm from the applicant’s husband can be reduced or even negated by the availability of state protection as well as internal relocation alternatives in the Philippines.
Appeals to Board and Board’s Decisions
8. The applicant appealed against both of the Director’s Decisions to the Board.
9. The applicant appeared before the Board at the re-hearings of the NRF Claim on 4 August 2016 and 19 February 2019.
10. By the Board’s 1st Decision, the Board dismissed the appeal against the Director’s 1st Decision relating to torture risk, persecution risk and “BOR 3” risk. The evidence does not show any harm or threat of harm from a state agent or anyone acting in the capacity of the state. The applicant had not in the past been subjected to any physical or mental sufferings reaching the minimum level of severity. Further, the applicant can live safely in the Philippines at least in places outside her home locality.
11. By its 2nd Decision, the Board held that the applicant had failed to establish a case of BOR 2 risk and dismissed the applicant’s appeal against the Director’s 2nd Decision.
Application for leave for judicial review and Judge’s Decision
12. By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 1194/2019 on 6 May 2019 (“Form 86”) and the supporting affidavit filed on the same day, the applicant sought leave to apply for judicial review of the Board’s Decisions without stating any proposed ground for judicial review.
13. By then, the application for leave to apply for judicial review of the Board’s 1st Decision was out of time. Nonetheless, the Judge dealt with both decisions of the Board.
14. The applicant did not request for an oral hearing. After considering the materials before him, the Judge refused leave on paper in the absence of any error of law, procedural unfairness or irrationality in either of the Board’s Decisions.
GROUNDS OF APPEAL
15. By the Notice of Appeal filed herein on 27 April 2023, the applicant appealed against the Judge’s Decision without stating any ground of appeal, properly so called.
16. In the written submission lodged on 25 May 2023, the applicant only reiterated the factual background of the NRF Claim.
17. The appeal was heard on 27 June 2023. The applicant appeared in person and confirmed to the court that she has nothing to add in further support of the appeal.
DISCUSSION
18. In view of the way in which the applicant conducted the proceedings before the Judge and before this court, this appeal can be disposed of shortly.
19. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise 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 [2018] HKCA 524 at [14(1)].
20. The applicant did not in the Form 86 or the accompanying affidavit raise any error of law, procedural unfairness or irrationality in either of the Board’s Decisions. That being the case, the application for leave to apply for judicial review of the Board’s Decisions was hopeless and rightly dismissed.
21. Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board (or that of the Director) afresh. What the appellate court is concerned with is the decision of the judge at first instance, which will be considered in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere if and only if the judge had erred in law or had failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)].
22. The applicant did not in either the notice of appeal or the submission (whether written or oral) before us identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. Nor can we discern any.
23. In any case, we have anxiously scrutinised the Board’s Decisions and the Judge’s Decision and are satisfied that both are in order.
DISPOSITION
24. For the above reasons, there is no basis for the Court of Appeal to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.
(Susan Kwan)
Vice President
Court of Appeal
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(Lisa Wong)
Judge of the Court of
First Instance
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The applicant, unrepresented, appeared in person
[1] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[2] This refers to a 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, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[3] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance.
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