RE GONZALES EBA MALAYO

CACV 409/2023, [2024] HKCA 542

On Appeal From [2023] HKCFI 3067

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 409 OF 2023

(ON APPEAL FROM HCAL NO 2273 OF 2020)

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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 November 2023 ([2023] HKCFI 3067)  (“the Leave Decision”)  refusing to grant her leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 11 November 2020, whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 5 November 2019.

2.  On 11 December 2023, the applicant indicated her consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

BACKGROUND

3.  The applicant is a national of the Philippines who worked intermittently in Hong Kong as a foreign domestic helper.  She last entered Hong Kong on 12 November 2016.  On 15 July 2019, she surrendered to the Immigration Department and admitted having entered into a false employment contract.  On 17 July 2019, she was convicted of the offence of making false representation and sentenced to four months’ imprisonment.  On 6 August 2019, she raised a non-refoulement claim on the basis that she would be harmed or killed by the family of her debtor Alex as they accused her of being responsible for his death.  Details of the applicant’s claim were summarised by the Judge at [4] - [10] of the Leave Decision.

4.  By a Notice of Decision dated 5 November 2019 (“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.  On 11 November 2020, the Board dismissed her appeal and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons were summarised by the Judge at [11] - [19] of the Leave Decision:

“11. The Board found the Applicant evasive when giving evidence before the Board. It found her testimony inherently improbable and her account incredible. The Applicant said that Alex was a friend of her brother not personally known to her and she had no knowledge of the background of Alex or his family. The Board felt under such circumstances, if the Applicant had truly lent money to Alex, she would not have failed to enquire into Alex’s background.

12. The Applicant also said she did not ask the police about Alex’s background because she was waiting for her employment visa and did not intend to pursue her case against Alex. The Board found this inconsistent with her evidence about the steps she had taken to seek repayment from Alex.

13. The Applicant claimed that it was public knowledge that Alex died of drug overdose. In the circumstances, the Board found it impossible that Alex’s family would have regarded her as the murderer and issued death threats against her. It also found it unreasonable that the Applicant would have shown no interested in finding about Alex’s death from the Philippines police which would vindicate her of her involvement in Alex’s death and put an end to the death threats. The Board therefore concluded that it is inherently improbable that the Applicant had been threatened with death by Alex’s family and that her allegation about the threats is an exaggeration.

14. Having rejected her evidence about the threat, the Board found the Applicant would not be at risk of any of the proscribed harm upon her return to the Philippines. The Board also held that even if she were at risk, she is also not entitled to protection under any of the four applicable grounds under the USM.

15. In respect of Torture Risk ground, the Board found that the harm likely to be inflicted on the Applicant does not meet the definition of ‘torture’ under section 37U(1)  of the Immigration Ordinance in that it would not be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

16. In respect of BOR 2 and BOR 3 Risk grounds, the Board found no evidence of a genuine and substantial risk that the Applicant will suffer significant harm, including arbitrary deprivation of life or cruel inhuman, degrading treatment or punishment, if refuoled.

17. In respect of Persecution Risk ground, the Board found that the threat was not on account of any of the reasons protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol, ie for reasons of race, religion, nationality, membership of a particular social group or political opinion.

18. Furthermore, based on country of origin information reports, the Board was satisfied that that adequate state protection would be available as evinced by the fact that the Philippines police took action against Alex after receiving the Applicant’s complaint. It also rejected the Applicant’s claim that Alex’s family would be able to locate her in other parts of the Philippines. Hence, it found that the Applicant could further avoid the risk by internal relocation.

19.  For all these reasons, the Board dismissed the Applicant’s appeal.”

THE JUDGE’S DECISION

6.  On 17 November 2020, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  No ground of intended review was given by the applicant in her Form 86 or supporting affirmation.

7.  On 15 November 2023, the applicant attended an oral hearing in person before the Judge.  A Tagalog interpreter was present to provide language assistance.

8.  On 28 November 2023, the Judge gave his decision refusing to grant the applicant leave to apply for judicial review for the following reasons:

“22. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The primary finding of the Board is that the Applicant is incredible and hence failed to prove her harm and risk of harm. However, in the alternative, the Board also assessed her claim wholly on the basis of her case as she asserted. It was on that basis that the Board found her feared ill-treatment does not fall within any of the four applicable grounds for protection; and even if it does, she could safely avoid the risks by internal relocation and it would not be unduly harsh to expect her to do so. Accordingly, the Board came to the conclusion that the Applicant was not entitled to non- refoulement protection under any of the four applicable grounds. These are finding of facts and of law.

23. The Board’s primary finding that the Applicant is incredible and hence failed to establish her claim of fear and risk of harm is a finding of fact which this Court may not interfere, save for errors of law, procedural unfairness or irrationality. Putting that primary finding aside, the Board’s alternative finding is solely based on the factual case as the Applicant asserted. She could have no reason to complain about the Board’s finding of these primary facts. It was on that basis that the Board further found the Applicant’s claimed fear of harm and risk fall outside the protection of the four applicable grounds under the USM. This is a mixed finding of fact and of law. Insofar as it is a finding of fact, it is exclusively within the province of the Board, which the court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct.

24. The Court could detect no error of law or procedural unfairness in the Decision, whether in its primary decision or alternative decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

25.  For the above reasons, leave to apply for judicial review of the Board’s Decision is refused.”

THIS APPEAL

9.  In her Notice of Appeal filed on 11 December 2023, she complained that the Board failed to consider and address the argument of state acquiescence.  She further complained that there was insufficient inquiry by the Board and that the Director was unfair as the Director only selectively included relevant Country of Origin Information (“COI”)  that supported a predetermined conclusion in his decision.  She further complained that the Director and the Board had failed to appreciate the gravity of her circumstances and the severity and urgency of the risks she faced.

10.  Pursuant to the directions of the Registrar of Civil Appeals dated 11 December 2023, the applicant lodged her written submissions on 5 January 2024.  In those submissions, she cited various legal authorities on the high standards of fairness and Wednesbury unreasonableness but failed to particularise how they were relevant to her case.

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 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.  The court’s role is not to examine the Board’s decision afresh as if it is 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, 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 case has no merit.  At the outset, all the points raised by the applicant in her Notice of Appeal are new points not raised before the Judge and the applicant fails to give any explanation as to why she did not advance the same in the court below.  It is well established that this court generally will not entertain new arguments which are fact-and-evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].

14.  In any event, her submissions are without substance. As noted by the Judge, the Board’s primary finding was that the applicant was incredible and thus failed to establish her claim and that there was no error of law or procedural unfairness in the Board’s Decision.  In particular, as noted by the Board, the alleged pain and suffering was not inflicted by, or at the instigation of or with the consent or acquiescence of a public official or any other person acting in an official capacity: see [78] of the Board’s Decision.  Further, her present contentions are general, vague and bare without specific particulars or evidence in support.  They do not constitute proper grounds of appeal.

15.  More importantly, the applicant has failed to identify or show with specific particulars any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Leave Decision.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Her allegations are not proper grounds of appeal.  Her appeal must also fail on this basis.  In any event, we have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.  We see no basis to disturb the Leave Decision.

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