PEREZ ADELA SIMEON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 190/2024, [2024] HKCA 896

On Appeal From [2024] HKCFI 1177

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 190 OF 2024

(ON APPEAL FROM HCAL NO 605 OF 2019)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”)  on 30 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 26 February 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 27 February 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines born in 1978.  She last entered Hong Kong as a visitor on 1 June 2016 and was permitted to remain until 15 June 2016.  The applicant overstayed and subsequently surrendered to the Immigration Department on 26 September 2016.  She made a claim for non-refoulement protection by way of written representation on 28 April 2017 and submitted her non-refoulement claim form dated 29 January 2018.  The applicant’s claim was made on the basis that if she returned to the Philippines, the Samuki tribe villagers would harm or kill her in proportionate revenge to her brother’s murder of the daughter (Rebecca)  of the leader of the Samuki tribe in 2011.  The factual background of the applicant’s claim was set out at [6.2] to [6.24] of the Board’s decision.

3.  By notice of decision dated 27 February 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against her.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] 

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 20 September 2018, during which the applicant gave evidence and answered questions from the Board. The Board did not question the applicant’s credibility and proceeded to consider the risk of harm faced by the applicant if she was refouled to the Philippines.  Taking into account the evidence as a whole, threats were made on one occasion only to her husband, and there was no actual harm.  It found there was in fact no real risk of harm if the applicant returned to the Philippines, because she did not experience any harm or threat from the Samuki tribe all along, she was able to enter and depart the Philippines with her own identity and passport without any problems, she was of no interest to the government or the authorities, and she could live safely with relatives in other parts of the Philippines as she had done for two years in the past, such as Baguio City, Cavite and Bulacan.  

5.  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 26 February 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

6.  On 4 March 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 her life was still in danger and annexed the Board’s decision together with its covering letter.

7.  As requested by the applicant, an oral hearing was held on 9 April 2024.  The Judge considered the application on the basis of the documents and oral submissions of the applicant.  On 30 April 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [10] to [14] of the Form CALL-1 as follows:

“ 10. On 4 March 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in her Form or her supporting affirmation of the same date in which she just repeated her claimed fear for her life as before but without putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

11. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: ReLakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst vDirector of Immigration [2018] HKCA 524.

12. In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13. 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.

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

Appeal to this Court

8.  On 13 May 2024, the applicant filed her Notice of Appeal against the Judge’s decision.  She did not list any grounds of appeal, but she stated that the decision was unreasonable in another part of the notice.

9.  The applicant has lodged written submissions in which she stated the basis of her non-refoulement claim, her life was still in danger if refouled, she was concerned about her safety, her wish to be with her family and children but for the threat to her life, and internal relocation was not possible as people can track her easily through social media. 

10.  At the hearing, the applicant did not make any submission beyond those she had submitted in writing.

Discussion

11.  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.

12.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant could not establish a real risk of harm, she was not a person of interest to the government or the authorities, and internal relocation was a viable option.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. The applicant has failed to show any reasonably arguable ground for saying that the Board’s decision should be impugned due to public law errors. 

13.  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.  We are not satisfied that there is any error in the Judge’s decision.

14.  The applicant’s appeal is accordingly dismissed.