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CACV 406/2022
[2023] HKCA 414
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 406 OF 2022
(ON APPEAL FROM HCAL NO 1076 OF 2019)
________________________
BETWEEN
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Perez Raymundo Eulalio alias Perez Raymundo E |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS
PETITION OFFICE |
Putative Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative Interested Party |
________________________
| Before: |
Hon Barma JA and S T Poon J in Court |
| Date of Hearing: |
16 March 2023 |
| Date of Judgment: |
13 April 2023 |
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J U D G M E N T
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Hon S T Poon J (giving the Judgment of the Court):
1. This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 29 September 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2998).
2. The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 4 April 2019, dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 2 February 2017 rejecting the applicant’s non-refoulement claim based on the BOR2 risk[1].
3. We heard the appeal on 16 March 2023. After the hearing, we reserved our judgment to be handed down in writing. This is what we do now.
Background
4. The applicant is a national of the Philippines. He entered Hong Kong on 9 August 2008 and was permitted to remain as a visitor until 23 August 2008. He overstayed and was arrested by the police on 30 October 2008. Thereafter, on 28 July 2009, the applicant raised a non-refoulement claim on the basis that if he returned to the Philippines, he would be harmed or killed by his boss, one Antonio Villar (“Antonio”), by reason of a monetary dispute. Factual details of the applicant’s claim were summarised by the Deputy Judge at [3] and [4] of the Leave Decision.
5. By a Notice of Decision dated 23 January 2015 (“the Director’s 1st Decision”), the Director rejected the applicant’s non-refoulement claim based on the grounds of torture risk[2], BOR3 risk[3] and persecution risk[4].
6. The applicant appealed against the Director’s 1st Decision to the Board, for which an oral hearing was held on 27 November 2015. He was legally represented at the hearing. The Board found that the applicant was unable to substantiate his allegations of harm inflicted by Antonio and/or his associates, and that he had failed to prove that he remained a target of Antonio. In any event, the Board found that state protection and options of internal relocation were readily available to him. The applicant’s appeal was dismissed by the Board’s decision dated 13 October 2016 (“the Board’s 1st Decision”).
7. The applicant did not thereafter seek to challenge the Board’s 1st Decision by way of judicial review.
8. Subsequent to the Director’s 1st Decision and the Board’s 1st Decision, it transpired that a claim based on the ground of BOR2 risk had become available to the applicant. After an invitation (by the Director to the applicant by letter dated 13 January 2017) to submit additional facts pertaining to a claim based on BOR2 risk was made, and by reason that the applicant did not respond to the invitation, his claim on all applicable grounds including BOR2 risk was determined on the papers by the Director.
9. The Director by his further decision dated 2 February 2017 rejected the applicant’s claim (“the Director’s 2nd Decision”). Taking into account all relevant circumstances, the Director considered that the applicant’s non-refoulement claim based on BOR2 risk was not substantiated.
10. The applicant then appealed against the Director’s 2nd Decision to the Board. Notwithstanding that the applicant was out of time in filing his Notice of Appeal, indulgence was granted by the Board for the late filing by reason of the relatively short delay. In the Notice of Appeal, the applicant claimed that his family in the Philippines have been receiving death threats (by way of letters) addressed to him. The Board, adopting the findings of the Director, found that there was no evidence to suggest that Antonio was behind the death threats. In addition, relevant Country of Origin information (“COI”) showed that Antonio had passed away in 2019, rendering any risks of harm, if any, posed to the applicant redundant and non-existent.
11. Accordingly, the Board considered that the applicant had failed to substantiate his claim on all applicable grounds and dismissed his appeal by its decision dated 4 April 2019 (“the Board’s 2nd Decision”).
The Leave Decision
12. On 23 April 2019, the applicant applied for leave to apply for judicial review against the Board’s 2nd Decision[5]. In his Form 86, the applicant set out various grounds of appeal and attacks against the findings of the adjudicator of the Board, which were helpfully summarised by the Deputy Judge as follows (at [16] of the Leave Decision):
“(1) Procedurally unfair: unlawfully fettered its discretion by refusing his appeal on the ground that they did not satisfy the requirement; failing to meet the greater care and duty owed to a self-represented claimant; failing to consider relevant and updated COI materials or cherry pick them; failing to call for psychological and psychiatric evaluation reports and the applicant was provided a duty lawyer resulting in lack of and/or insufficient legal representation.
(2) Irrationality: the decision was irrational; failing to consider flagrant or mass violations of human rights in the Philippines; failing to consider state protection or extended state protection and failing to consider COI materials favourable to the applicant.
(3) Error in law: the adjudicator erred in law to direct himself that to establish substantial ground to believe that there would be a risk of torture in future, he has to experience torture in the past and the adjudicator had applied the incorrect standard of proof.
(4) Wednesbury unreasonable: by dismissing his appeal.”
13. The applicant appeared at an oral hearing before the Deputy Judge.
14. By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review. His reasons were set out at [17] to [23] of the Leave Decision:
“17. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
18. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said if he returned to his country, he would be killed. His enemies will follow him wherever he goes. The government cannot protect him.
19. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13. (1) … …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.’
20. Those grounds in paragraph 16 above are mostly his personal comments or bare assertions without any evidence in support. It is clear that the Board dismissed his appeal on the basis that his evidence was not acceptable and the Board had given its reasons in support of it decisions. Without the factual basis in support of his claim, the Board has to dismiss his appeal. His complaint on the quality of legal representation is not within the province of the Board. The applicant had not raised any psychological or psychiatric issues in the hearing. The Board has no obligation to consider these issues on its own motion.
21. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
22. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.
CONCLUSION
23. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”
The Appeal
15. On 11 October 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision. In the Notice of Appeal, he stated, in gist, that he would “face hardship” if refouled, and that the Board had erroneously relied on “source of news which is not official recognised, or it is simply hearsay”.
16. Pursuant to the directions made by the Registrar of Civil Appeals on 15 November 2022, the applicant lodged his written submissions on 2 December 2022. In those submissions, the applicant referred to the well-established principles in, inter alia, ST v Director of Immigration (sic)[6] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531, R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 and Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
17. The appeal was initially fixed to be heard on 1 February 2023, but due to the applicant’s illness, the hearing was re-fixed to and was heard on 16 March 2023. A Tagalog interpreter was present to provide language assistance. During the hearing, the applicant repeated his fears of being killed if he was refouled to the Philippines, claiming that the local police were also somehow involved in this apparent scheme of violence. He added that his family were now living safely in Canada, and that his wife had divorced him some time ago.
Discussion
18. The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].
19. 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’s decision, the appeal should be dismissed. It is not the role of the Court of Appeal to examine a 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.
20. At the outset, most if not all of the applicant’s allegations are vague, bare contentions and without basis in or support by evidence. Although he disagreed with the Leave Decision, nowhere in his Notice of Appeal or written submissions did the applicant identify with specific particulars as to how the Deputy Judge had erred in reaching the Leave Decision. Accordingly, his submissions are plainly not proper grounds of appeal. On this basis alone, his appeal must fail.
21. Further, general assertions of the applicant’s fear if refouled do not constitute proper grounds of appeal: see Re Farrukh Zaib [2020] HKCA 408 at [28].
22. The applicant has failed to particularise or identify, inter alia, the manner in which the Board is said to have fettered its discretion, failed to consider relevant COI or reached a decision that was irrational or Wednesbury unreasonable.
23. In any event, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, COI and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. 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 Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].
24. As to the applicant’s complaint of a lack of legal representation before the Board, this Court has repeatedly held that it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom. See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178. In this regard, we note that the applicant has had the benefit of legal representation in the first hearing before the Board.
25. There was also no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the consideration of his appeal by this court or in processing of his non-refoulement claim.
26. The Deputy Judge, after rigorous examination and anxious scrutiny, could not find any error of law or procedural unfairness or reasonably arguable grounds to challenge the findings of the Board. We see no basis to interfere with the Leave Decision.
27. For the above reasons, the applicant’s appeal has no merit and we dismiss the appeal.
| (Aarif Barma) |
(S T Poon) |
| Justice of Appeal |
Judge of the
Court of First Instance |
The applicant acting in person.
[1] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] Notwithstanding that the decision which the applicant had sought to review was stated in the Form 86 to be the one that dismissed his claim based on “the principles of Torture or BOR 2 or BOR 3 or persecution”, presumably because the date of the decision was stated therein to be “4 April 2019” (i.e. the date of the Board’s 2nd Decision) and that in any event the applicant was severely out of time in lodging any review against the Board’s 1st Decision (for which leave had not been applied for nor granted), the Deputy Judge treated the review as against the Board’s 2nd Decision only (see [15] of the Leave Decision).
[6] The correct citation should be ST v Betty Kwan.
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