MALIWANAG NESTOR MARCIAL v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CACV 308/2018

[2018] HKCA 891

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 308 OF 2018

(ON APPEAL FROM HCAL NO 888 OF 2017)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 29 June 2018[1] refusing him leave to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim.

2.  The appeal was scheduled to be heard on 28 November 2018.  Directions were given by the Registrar of Civil Appeals on 3 August 2018 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for his appeal and elect to have his appeal disposed of on paper.  In such circumstances, the hearing date shall be vacated and the Court of Appeal shall proceed to consider the appeal on paper only without further notice.

3.  A notice of hearing of the appeal dated 21 September 2018 was issued and sent to the applicant by post.  In the notice, he was reminded that he should comply with the above directions of the Registrar of Civil Appeals.

4.  The applicant failed to lodge skeleton argument not less than 28 days before the hearing of the appeal (i.e. on or before 31 October 2018).  The court sent him a letter dated 7 November 2018 informing him that the hearing date of 28 November 2018 has been vacated and his appeal will be dealt with on paper.

Factual background

5.  The applicant is a Philippines national.  He last arrived in Hong Kong in 1999 with permission to work as a domestic helper. When his contract was prematurely terminated in 2001, he did not depart and instead overstayed until 4 October 2015 when he was arrested by the police for possessing another person’s identity card.  After serving 12 months’ imprisonment, he was released to the Immigration Department for deportation. He raised a non-refoulement claim on 2 November 2015 on the basis that if he is to be returned to the Philippines, he would be harmed, or killed, by the New People’s Army (“NPA”) or by the Philippine military.

6.  According to the applicant’s case, he was caught and subjected to torture and interrogation by members of the Philippine military for six months in 1989 to 1990.  After that occasion, he was not harmed but he heard from continuing contacts in the NPA that he was still wanted by the organization and remained in their hit list.

The Director’s decision

7.  By the Notice of Decision dated 17 October 2016, the Director rejected the applicant’s non-refoulement claim.  The decision covered the torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].  Due to the low intensity and low frequency of past ill treatment and the lack of objective evidence that the purported military people had a real intention to harm the applicant seriously or to kill him, the Director determined there is no reasonable likelihood that the risk of harm from the NPA and the purported military people is real and foreseeable[6], and the availability of state protection and internal relocation alternatives further lowers or negates the level of risk[7].

The Board’s decision

8.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 29 June 2017.  The Board found that the applicant provided vague answers in response to questioning, his evidence was incoherent and contradictory, andconcluded that he was not a witness of truth[8].  Importantly, the Board noted he spent more than twenty years living in Hong Kong without claiming protection to the United Nations High Commissioner for Refugees or the Hong Kong authorities and took the view that his behavior belies his claim to be a person who fled the Philippines in fear of his life[9].  The Board decided that the applicant failed to establish his claim and dismissed the appeal on 9 November 2017.

The intended judicial review

9.  The applicant filed a Form 86 and an affidavit on 14 November 2017 to seek leave to apply for judicial review of the decisions of the Director and the Board.  He did not provide any ground for his intended challenge in the Form 86 or his supporting affidavit.

The judge’s decision

10.  At the oral hearing of his leave application before the judge, the applicant just claimed that the Director and the Board had focused on the wrong issue but he was unable to provide any further particulars or elaboration[10].

11.  The judge was of the firm view that there cannot be any prospect of success in the applicant’s intended application for judicial review and the leave application was therefore refused[11].

12.  The applicant filed a Notice of Appeal against the decision of the judge on 11 July 2018.

Ground of appeal

13.  The applicant only stated in the Notice of Appeal that the judgment is unreasonable, without any providing any particulars.

14.  As mentioned above, he failed to provide any grounds in both the Form 86 and his supporting affidavit, but only claimed at the hearing that the Director and the Board had focused on the wrong issue, without providing any further particulars or elaboration.

Analysis

15.  In Re Moshsin Ali [2018] HKCA 549, the Court of Appeal held that the decision of the Director is not susceptible to judicial review once an appeal to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office is pursued by a non-refoulement claimant[12].  Since the applicant had already appealed to the Board against the Director’s decision, the court would focus on the decision of the Board in the intended judicial review.

16.  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, the appeal would be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53 rule 4(1) of the Rules of the High Court.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6).

17.  It has been repeatedly emphasised that the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board.  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.  See Nupur Mst v Director of Immigration at §14(1).

18.  In this instance, the only ground of appeal as stated is that the judgment is unreasonable.  This is lacking in particulars and the applicant failed to show there is any error of law or procedural unfairness or irrationality in the decision of the Board.

19.  There is no merit in the appeal and no prospect of success in the intended application for judicial review.  We therefore dismiss the appeal.