RE VILLA ERLINDA BALIDO

CACV 237/2018

[2018] HKCA 630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 237 OF 2018

(ON APPEAL FROM HCAL 922/2017)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 8 June 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 3 November 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 8 August 2016 and 1 August 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines.  She entered Hong Kong on 13 August 2009 to work as a domestic helper.  She surrendered to the Immigration Department on 3 August 2015 some five years after her contract was terminated.  After her arrest, she lodged a non-refoulement claim on 31 March 2016. 

3.  The applicant’s claim was based on the threat from her husband.  According to the applicant, in around 2005 she had a heated argument with her husband. Afterwards, she continued to hear threats from her husband.  She decided to remain in Hong Kong after her contract was terminated in 2010.

4.  By a Notice of Decision dated 8 August 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 1 August 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 Torture Claims Appeal Board.  After a hearing on 8 September 2017, the Board dismissed the appeal on 3 November 2017 (“Board’s Decision”).

7.  At [45] of the Board’s Decision, the Board held that the applicant “is not at risk of harm from her husband should she return to the Philippines”.  It also held that state protection was available for the applicant.

The deputy judge’s decision

8.  The applicant filed a form 86 on 21 November 2017.  The form 86 contained no ground for seeking relief. 

9.  In the affirmation in support of the leave application dated 21 November 2017, the applicant advanced the following grounds for judicial review:

(1) failure on the part of the Director and the Board to properly consider her fear of her husband;

(2) failure on the part of the Director and the Board to properly consider the risk of threats and harm from her husband;

(3) failure to conduct sufficient inquiry into COI in the consideration of her claim; and

(4) error/misdirection in law for failing to consider the psychological impact of the threats against her. 

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 give leave to apply for judicial review.  The judge gave the following reasons at paragraphs 10 to 12 of the CALL-1 form:

“10. All of these grounds are however just general and vague statements with no substance or merits whatever, nor are there any specific errors being identified by the applicant, and given the clear findings of facts based on the applicant’s own case by both the Director and the Board of the only threats from her husband were those uttered verbally during a quarrel more than 10 years ago, and with state and police protection clearly available to her upon her return to the Philippines, I am unable to find any basis or merits in any of these grounds of the applicant.

11. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

12. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

Grounds for appeal

11.  In the Notice of Appeal dated 19 June 2018 the applicant advanced the following grounds of appeal:

(1) the judge was wrong to conclude that she faced risks and danger from her husband, including a risk of being killed, upon her return.  State protection is not available to ordinary people like the applicant; and

(2) she accepted that her claim was a “private problem” but it causes danger to her life.  She wishes to seek protection in Hong Kong.

12.  In her skeleton submissions dated 14 August 2018, the applicant submitted that the Board and the Director failed to consider the domestic violence committed against her by her husband and the fact that her husband still blames her for the death of their son.  She believed that her BOR3 risk and CIDTP risk were not properly considered.

13.  The applicant agreed by a letter of 19 June 2018 that the appeal can be heard by two judges.  We heard the appeal on 19 September 2018.

General principles

14.  Before we address the applicant’s case, it is necessary to highlight the following general propositions which were stated by Lam VP in Re Nupur Mst [2018] HKCA 504, CAMP524/2018 at [14]:

“14. …

(1) 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. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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: see Re Zunariyah [2018] HKCA 14; Re Qadir His [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the 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 the determination of 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 made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(3) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.

(4) In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: see Re Daljit Singh [2018] HKCA 328; Re Qadir His [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(5) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(6) 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 this Court 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 stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). See: Re Qadir His [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474.”

Discussion

15.  As is clear from her grounds of appeal, the applicant’s main complaint relates to her disagreement with the views of the judge that the risk of harm to her was very low having regard to the lapse of time since her argument with her husband, and given the availability of state protection.  In these respects, the judge considered that there was no error or irrationally in the conclusions of the Board.  We are unable to see any error in the judge’s conclusions, which appear to us to be well founded.  As pointed out above, it is not the role of this court (or the court below) to act as a further avenue of appeal from the Board.  The court will only intervene where the decision of the Board can be challenged on public law grounds, none of which have been established here. 

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