RE VILLANO MARICAR TABITA

CACV 346/2019

[2019] HKCA 1442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 346 OF 2019

(ON APPEAL FROM HCAL 1594/2018)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) on 16 July 2019 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Director of Immigration (“the Director”) dated 22 January 2018 and the decision of the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 26 July 2018.  By the former decision, the Director rejected the applicants’ claim for non-refoulement protection in Hong Kong; and by the latter decision, the Board upheld the said decision of the Director.

2.  Due to the non-compliance with an unless order in terms of lodging skeleton submissions, the hearing date for this appeal (originally listed for 25 November 2019) was vacated and this appeal is processed on paper based on the materials already lodged.

3.  This is our judgment.

Background

4.  The applicant is a national of Philippines.  She had been working in Hong Kong as a domestic helper since 2013.  Her employment contract was terminated in July 2014; and she was granted an extension to stay in Hong Kong as a visitor until 9 August 2014. She did not depart upon the expiry of her permission to remain, and overstayed illegally.  She was arrested by the police on 4 October 2014.  She lodged her claim for non-refoulement protection on 20 October 2014.

5.  The applicant’s claim was based on the fear that, if refouled, she would be harmed or even killed by her creditor because of her inability to repay a loan owed to him.  The background facts of this case has been succinctly set out by the Judge in [3] of the Form CALL-1 ([2019] HKCFI 1773).  

6.  The Director assessed the applicant’s claim on all applicable grounds, including the risk of violation of absolute and non-derogable rights guaranteed under the Hong Kong Bill of Rights (particularly, the BOR 2 risk[1] and the BOR 3 risk[2]), the persecution risk[3], and the torture risk[4]. By a notice of decision dated 22 January 2018, the Director determined the claim against her.

7.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  An oral hearing was held on 10 May 2018 at which the applicant gave evidence.  While the Board accepted that the applicant was a truthful and credible witness, it also found that the dispute was only a private matter between the applicant and her creditor and that there was no evidence of the involvement of any public officials[5]. Nor was there any evidence that the Philippine authorities would not render protection to the applicant if she sought the same[6]. The Board further found that internal relocation was a viable option for her[7]. As a result, the Board concluded that there was no substantial ground for believing that the applicant would face a risk of being ill-treated if refouled.  By the decision given on 26 July 2018, the Board dismissed the applicant’s appeal. 

The Judge’s decision

8.  On 10 August 2018, the applicant applied to the court for leave to apply for judicial review.  As mentioned earlier, the intended judicial review was against the decisions of both the Director and the Board.  The applicant set out her intended grounds for seeking relief in her supporting affirmation filed on the same date.  The Judge categorized the grounds into three main groups, under the headings of “procedural impropriety”, “error/misdirection in law”, and “irrationality”: see: [10] of the Form CALL-1.

9.  Upon the request of the applicant, an oral hearing was held on 21 February 2019.

10.  The Judge held in [12] of the Form CALL-1 that, in reliance on the case Re Moshsin Ali [2018] HKCA 549, the applicant could no longer seek judicial review against the decision of the Director once the appeal to that decision had been pursued. 

11.  As mentioned earlier, the Judge refused to grant leave for the applicant to apply for judicial review.  His reasons in refusing leave for judicial review against the Board’s decision were set out in [15] – [19] of the Form CALL-1 as follows:

“ 15. The applicant appeared before me. She confirmed that she could read English and she had no complaint against either the Immigration officer or the Adjudicator. She understood their decisions. She considered that he (sic) had had a fair hearing before the Board.

16. It is obvious that as the Board accepted her evidence on the facts, but found that her case did not come under the protection of the relevant statutory provisions and Conventions.

17. I had put to her the Board’s findings and asked her if she had any comments. She said that she had no comments on them.

18. Grounds (1), (2) and (3) are her opinions without any evidence in support of it. She had not raise any psychological issue before the Adjudicator. They fail.

19. The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.”

The appeal

12.  On 29 July 2019, the applicant filed a notice of appeal.  In it, the applicant stated that:

“ … the grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” (sic)

13.  As mentioned earlier, notwithstanding that she was directed to do so, the applicant did not lodge any skeleton submissions in support of this appeal.

General principles

14.  Before we address the merits of this appeal, we would highlight the general propositions that this Court has adopted in determining an appeal for non-refoulement cases.  

(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 the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand in non-refoulement cases, it 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.

(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 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.

(3) 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 time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

15.  In the present case, the Board rejected the applicant’s claim because it did not find that she would face a genuine and substantial risk of being subjected to ill-treatment if refouled.  State protection was found to be available and internal relocation was considered a viable option.  As explained above, assessments of risk, availability of state protection, and viability of internal relocation are all within the province of the Board.  The court will not interfere with the findings of the Board unless they can be quashed on public law grounds.  Having considered the materials available to him, the Judge could not find any reasonable chance of success in challenging the findings of the Board in the intended judicial review.

16.  In this appeal, the applicant renewed her complaint regarding the Board’s handling of the COI materials.  She did not identify any error in the Judge’s decision.  In such circumstances, there is no viable ground for us to reverse it.

17.  The applicant failed to provide any particulars or specifics in support of her complaint regarding the Board’s handling of the COI materials.  We agree with the Judge that the intended judicial review had no reasonable chance of success.  The applicant therefore failed to meet the threshold for leave to be granted as laid down by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

18.  For these reasons, we dismiss the appeal.