RE LAZAGA GINA CARBONELL

CACV 229/2024, [2024] HKCA 910

On Appeal From [2024] HKCFI 1454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 229 OF 2024

(ON APPEAL FROM HCAL NO 378 OF 2019)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the order of Deputy High Court Judge To (“the Judge”)  dated 28 May 2024 ([2024] HKCFI 1454)  (“the Leave Decision”)  refusing her application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 30 November 2018 (“the Board’s Decision”), whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 13 February 2018 (“the Director’s Decision”)  refusing her non-refoulement claim.

2.  We heard the appeal on 25 September 2024.  After the hearing, we reserved our judgment to be handed down in writing.  This is what we do now.

BACKGROUND

3.  The applicant is a national of the Philippines.  She last entered Hong Kong on 22 August 2013 to work as a foreign domestic helper.  She overstayed in Hong Kong after her contract of employment was terminated.  She surrendered to the authorities on 23 August 2016.  On 24 January 2017, she submitted a written signification for non-refoulement claim, on the basis that, if refouled, she would be harmed or killed by her husband, and that she believed that state protection and internal relocation would not be available to her.  Details of the applicant’s claim were summarised by the Judge at [3] - [13] of the Leave Decision.

4.  By the Director’s Decision, the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.  The applicant appealed the Director’s Decision to the Board.  The applicant attended an oral hearing before the Board on 18 October 2018.  By the Board’s Decision, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [14] - [17] of the Leave Decision:

“14. The Board accepted that her husband had assaulted the Applicant on different occasions, either alone or together with his gang. Except for one occasion when he cut her hand with a knife, the attacks were limited to beating with bare hands and burning by cigarettes. The Board did not accept that her husband had forced her to have sex because this allegation was raised for the first time in the screening interview and was not mentioned in the NCF. The Board accepted that the Applicant had tried to file a police report at Pagdaraon once in 2009, which was rejected by a police officer. However, it did not accept that she had filed a written complaint against her husband at the city mayor’s office in 2013 and that arrest warrants had been issued against her at the instance of her husband because her evidence in those respects were inconsistent and incredible.

15. The Board found the Applicant’s husband had multiple opportunities to inflict severe injury or harm on the Applicant but refrained from doing so. It found the past ill-treatments inflicted on her did not attain a minimum level of severity. From the nature and the low intensity of the past ill-treatment, the Board drew the inference that the future of risk of harm upon the Applicant’s return to the Philippines would be low.

16. The Board noted that the last contact between the Applicant and her husband took place in 2014. There was no evidence that her husband had ever harmed her family in the Philippines. The Board therefore did not accept that her husband had any motivation to carry out the death threat issued against her years ago. It found that the Applicant would not face any of the proscribed risks of harm from her husband upon her return.

17.  The Board found that the Applicant’s husband and his associates were not public officials or acting in the capacity of the state, or with its consent or acquiescence when ill-treating her. It found the Applicant’s dispute with her husband was purely private in nature and had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the 1951 Convention relating to the status of Refugees and its 1967 Protocol. It also found that the Applicant had failed to provide any evidence or information to establish a real risk of danger against her life under BOR 2 Risk ground and that it is unlikely that the state will be unable to protect her if her husband and his gang were to go after her and attempt to kill her. It accepted the Applicant’s allegation that the Philippine police is corrupt and inefficient. However, on the basis of authoritative and credible country of origin information (‘COI’), it was satisfied that the rapid advancements and improvements in the police outweighed such defects. The Board was satisfied that adequate state protection is available to the Applicant on her return to the Philippines. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the USM. Hence, it dismissed her appeal against the Director’s Notice.”

THE JUDGE’S DECISION

6.  On 11 February 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  Her grounds of review were summarised by the Judge at [20] of the Leave Decision:

“(1)  Misdirection in the law: That the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe there was risk of torture in the future (Item 1 on Page 15):

(2)  Procedural impropriety/unfairness: The Board failed to carry out sufficient research and inquiry into the COI, failure to take into account USHR 2010 and USRF 2010, Report on the ICJ Mission to Philippines by The International Commission of Jurists (‘ICJ’), failure to obtain requisite documents (Item 2 on Page 16, Page 18);

(3)  Irrationality: Cherry-picking COI, giving weight to irrelevant COI, failure to give weight to relevant COI, relying on outdated COI based on information in 2012 and 2013 instead of information in 2016, resulting in a irrational decision, relying on news from sources which are not officially recognized or is hearsay (Item 3 on Page 16, Page 17, Page 18);

(4)  Irrationality: Failure to find whether there exists in the Philippines a consistent pattern of gross, flagrant or mass violations of human rights (Item 4 on Page 16);

(5)  Irrationality: Failure to analyse and assess state protection under the extended meaning, ie that the state had exercised due diligence or sufficient due diligence (Item 5 on Page 16);

(6)  Irrationality: Taking into account and putting weight on irrelevant, incorrect, inaccurate considerations or inferences and failure to give weight to those that are relevant, correct, etc (Item 5 on Page 16):

(7)  Procedural impropriety: Failure to call for psychological and psychiatric reports (Item 7 on Page 16);

(8)  Procedural impropriety/unfairness: Applying wrong standard of proof (Item 8 on Page 17); and

(9)  Procedural impropriety/unfairness: Failure at first instance by the assigned duty lawyer resulted in a lack of and/or insufficient legal representation, the Applicant was not legally represented before the Board, no language assistance, late delivery of hearing bundle, BOR 2 Risk decided without a screening interview (Item 9 on Page 17, Page 18, Page 19).”

7.  On 25 April 2024, the applicant attended an oral hearing before the Judge and an Ilocano interpreter was present to provide language assistance.  On 28 May 2024, the Judge refused to grant leave to apply for judicial review and gave his reasons at [21] - [34] of the Leave Decision.  In essence, the Judge found that the applicant’s grounds of challenge were not reasonably arguable as they were based on distorted constructions of the Board’s reasons for its findings and in any event they had no specific particulars in support nor substance.[5]  As to her allegations on the lack of legal representation, the Judge found that the applicant failed to provide particulars to support her allegations and in any event, she suffered no prejudice due to the lack of legal representation before the Board.[6]  As the Judge found no error of law, procedural unfairness or Wednesbury unreasonableness in the Board’s Decision, the applicant’s proposed judicial review had no realistic prospect of success and was accordingly dismissed.[7]

THIS APPEAL

8.  In her Notice of Appeal filed on 7 June 2024, the applicant stated:

“ … 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)

9.  Pursuant to the directions of the Registrar of Civil Appeals dated 30 July 2024, the applicant lodged her written submissions on 15 August 2024.  In those submissions, she cited various legal authorities in relation to the high standards of fairness and procedural fairness, but failed to elaborate on how they apply to her case.

10.  We heard the appeal on 25 September 2024.  A Tagalog interpreter was present to provide language assistance. During the hearing, she confirmed that she had nothing to add to her written submissions.

DISCUSSION

11.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, 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’s decision, the appeal should be dismissed.  The court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

12.  Further, the assessment of evidence, County of Origin information (“COI”), 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: Re Kartini [2019] HKCA 1022.

13.  In our view, the applicant’s allegations have no substance.  The applicant’s complaints are mainly against the Board and do not point to any error of the Leave Decision.  Her complaints are also all general and vague without specific particulars or evidence in support.  Her complaints regarding COI had all been considered and rejected by the court below, see in particular: [22] - [23] of the Leave Decision.  She fails to point out how the Judge erred in his decision.  Her allegations therefore do not constitute proper grounds of appeal.  See: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Further, general assertions of her fear if refouled also do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].

14.  In any event, we have considered the Leave Decision carefully and are unable to see any arguable ground of appeal against the decision.  The Judge considered the allegations raised by the applicant and gave detailed reasons for his decision. We see no basis to disturb the Leave Decision.

15.  The applicant’s appeal against the Leave Decision has no merit and is dismissed.