TABINGAN JULIUS KIDAO v. TORTURE CLAIMS APPEAL BOARD

CACV 169/2024, [2024] HKCA 907

On Appeal From [2024] HKCFI 1085

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 169 OF 2024

(ON APPEAL FROM HCAL NO 1506 OF 2021)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”)  on 23 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 21 October 2021.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 27 April 2021 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines born in 1989.  He last entered Hong Kong on 9 January 2020 as a visitor and was permitted to remain until 23 January 2020. The applicant overstayed and was arrested by the police on 27 October 2020 for the offences of breach of condition of stay and theft.  He lodged a non-refoulement claim by way of written representation dated 9 November 2020 and completed a non-refoulement claim form dated 25 January 2021.  The applicant’s claim was made on the basis that if he returned to the Philippines, his mother’s cousin (Rebecca Mayomis)  (“Rebecca”)  would harm or kill him due to a property dispute.  The factual background of the applicant’s claim was set out at [7.1] to [7.34] of the Director’s decision.

3.  By notice of decision dated 27 April 2021, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  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 15 September 2021, during which the applicant gave evidence and answered questions from the Board. The Board found the applicant’s account not credible and rejected it as untruthful, and did not accept he had been ill-treated in the Philippines as alleged or at all.  The Board took into account, among other things, that the applicant’s intentional delay in seeking protection for over 9 months whilst in Hong Kong was detrimental to his credibility, the applicant did not adduce any objective support for his material assertions, the Board did not accept that the applicant’s family owned the disputed land, the Board did not accept that the applicant had confronted Rebecca resulting in him being threatened and assaulted by her in their home village, and the Board did not accept that Rebecca was influential or that she had chased him in the past or will do so in the future.

5.  The Board proceeded to find that there was in fact no real risk of harm if the applicant returned to the Philippines, because the Board did not accept that the applicant had been ill treated as alleged or at all.  Further, in consideration of the applicant’s evidence and the COI, the Board found that state protection was reasonably available to the applicant. The Board considered that in any event any influence or power of Rebecca was localized in the home village and that internal relocation to anywhere else in the Philippines, especially Metropolitan Manila, would be reasonable and not unduly harsh for the applicant as an able-bodied male with secondary education level and substantial general work experience.

6.  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 21 October 2021, 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

7.  On 1 November 2021, 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.  He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, he simply stated that he was against the Board’s decision and annexed a copy of it.

8.  An oral hearing was held on 9 April 2024.  The Judge considered the application on the basis of the documents and the oral submissions made by the applicant.  On 23 April 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [11] to [15] of the Form CALL-1 as follows:

“ 11. On 1 November 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his 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 his intended challenge.

12. 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: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

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

14. 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.

  15.  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 his leave application.”

Appeal to this Court

9.  On 29 April 2024, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that he did not want to go home yet because his life was still in a dangerous situation and that the decision was unreasonable.

10.  The applicant has lodged written submissions in which he stated that he did not have legal knowledge of Hong Kong law as a foreigner, that his aunt might utilize her political influence and violence against him, that he was up against a person with money and influence, that internal relocation is not a viable option, and that the government would not protect him.

11.  At the hearing, the applicant stated that he had nothing to add to what is already in the records.  We shall accordingly determine the appeal on the basis of the available documents, materials and evidence submitted by the applicant.

Discussion

12.  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.

13.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant’s claims were not credible or truthful.  In any event, the Board found that internal relocation and state protection were reasonably available for the applicant.  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.

14.  As to the applicant’s complaint of his lack of knowledge of Hong Kong law, it has been repeatedly emphasised by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to and the high standard of fairness required by law does not entail free legal representation at all stages of the process: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11]. The applicant was legally represented in forming the basis of his case and at the stage before the Director.  Although he claimed that he was not informed about what else he could do, it is clear that the applicant managed to appeal to the Board, apply for leave for judicial review before the Judge and bring an appeal in this court.  We do not accept that this would be an arguable ground for judicial review.

15.  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.

16.  The applicant’s appeal is accordingly dismissed.