RE MORILLO ELEJA LOQUINARIO

CACV 257/2020

[2020] HKCA 1069

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 257 OF 2020

(ON APPEAL FROM HCAL NO 1773 OF 2018)

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J U D G M E N T

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Hon Toh J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of K.W. Lung (“the Judge”) on 7 July 2020 in HCAL 1773/2018 refusing leave to the applicant to apply for judicial review. By that decision, the Judge refused her application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 15 August 2018 in which the Board confirmed the decision of the Director of Immigration (“the Director”) dated 15 March 2018.

Background

2.  The applicant is a national of the Philippines.  She came to Hong Kong as a domestic helper since 1996. Her employment contract was terminated prematurely on 15 May 2009, but she did not depart and overstayed since 30 May 2009 Hong Kong. On 7 March 2015, she was arrested by police and was referred to the Immigration Department on 10 March 2015.  On 19 March 2015, she lodged a non-refoulement claim on the basis that if she were to return to the Philippines, she would be harmed or even killed by her husband because he suspected that the applicant had an external martial affair with another man.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1368. 

3.  By the Notice of Decision dated 15 March 2018, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

4.  The applicant appealed to the Torture Claims Appeal Board (“the Board”). After an oral hearing on 19 June 2018, the Board dismissed the appeal on 15 August 2018.  The applicant denied that she had an extra-marital boyfriend and was only made up by rumor-monger out of spite in or about 2003.  Further, the applicant was not in contact with her husband for a substantially long period of at least 22 years (since September 1996 after the applicant left Philippines for work) and if the husband was still serious about his relation with the applicant, he must have found ways to keep bothering the applicant and he had not done so.  Judging from the “peace” or “lack of actions” from the husband in the past 15 years, the Board found that the husband is unlikely to any abusive action against the applicant.  For the aforesaid reasons, the applicant had failed to substantiate that she qualified for non-refoulement protection on any of the applicable grounds.

The Judge’s decision

5.  On 29 August 2018, the applicant filed her Form 86 to apply for leave for judicial review in respect of the decision of the Board.  In her supporting affirmation, she set out the background of her case and advanced the following grounds for her intended challenge:

(1)  Procedural impropriety: failing to conduct sufficient inquiry into the relevant country of origin conditions.

(2)  Procedural impropriety / irrationality: failing to provide reasons for assessment of lack of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk.

(3)  Error / misdirection in law: failing to take into account the considerations of psychological strain for threats to her personally or threats to her kill her directly.

(4)  Insufficient basis to conclude that she would not be at risk of being subjected to torture and/or cruel, inhuman or degrading treatment or punishment (“CIDTP”).

6.  By the CALL-1 Form of 7 July 2020, the application was refused.  The Judge did not deal with the grounds of the applicant’s intended challenge.  He dismissed the applicant’s application after due consideration of the Board’s decision in which he found no errors of law or procedural unfairness or irrationality in the Board’s decision.  

The Appeal

7.  On 13 July 2020 , the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated ground of appeal is as follows:

(1)  failing to consider her claim under BOR3 risk that her life still in danger if refouled;

(2)  failing to conduct sufficient inquiry into the country of origin that she would face risk of harm upon refoulement; and

(3)  failing to consider her fear under all applicable grounds that her life is still at risk if refouled.

8.  In compliance with the direction given by Master Tsui on 9 October 2020, the applicant lodged her written submissions on 19 November 2020.  In her written submissions, she advanced the following:

(1)  The Board and the Director failed to comply with their duty to make sufficient inquiries into the Country of origin conditions of her claim and adopted a passive approach in contravention of the high standards of fairness as laid down in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and TK v Michael Jenkins & Anor [2013] 1 HKC 526.

(2)  The Board and the Director had failed to take into account and/or give proper weight to relevant considerations and materials which they should have, and hence the decisions were illegal.  Specially, the Board and the Director had failed to give due regard to:

(a)  the fact she would face real risk upon refoulement because of her fear of her enemies and that her life would be in danger; and

(b)  the fact that she had been placed in severe mental distress and that she would definitely face difficulty from her enemies upon refoulement.

(3)  Her claim is not personal or private in nature as she fled for her life from a group of murderers who will hunt her wherever she hides in the Philippines. There were no clear directions from the decisions why she would not be a subject of persecution upon refoulement. The Board and the Director failed to assess her fear to return to her country as her enemies are still looking for her. 

9.  We heard the appeal on 22 December 2020. 

General Principles

10.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]:

(1)  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.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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 should 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 (Cap 4A). 

Discussion

11.  The fact that the Judge did not specifically address the grounds of challenges may not assist the applicant if there is no substance in these grounds.  We now deal with the grounds of challenge against the Board’s decision.

12.  The applicant’s first complaint that the Board had failed to conduct sufficient inquiry into the relevant Country of origin information (“COI”) is misconceived. Her case is premised on her alleged fear of domestic violence and abuse of her husband without any involvement of state factor and thus it was not necessary for the Board to refer to any COI in assessing her case.

13.  Regarding the second and fourth complaints that the Board failed to provide reasons or sufficient basis in rejecting her claim on BOR 3 risk and torture risk, we note that the Board had duly set out its assessment and findings on BOR 3 risk at [40] to [44] of its decision and at [49] to [54] on risk of torture and came to the right conclusion that the applicant did not have any well-founded fear of being persecuted nor she would face any genuine and substantial risk of being subjected to torture or CIDTP. 

14.  Similarly, the applicant’s third complaint that the Board failed to take into account her psychological strain of being harmed or even killed by her husband was unmeritorious.  The Board had rightly pointed out that the applicant had not seen her husband since she left the Philippines for work in September 1996 and the parties only had quarrels over the phone from mid-1997 to 2003 occasionally, her alleged fear did not attain the minimum level of severity for mental torture.

15.  To conclude, we take the view that the Board’s findings are detailed and well based without any errors of law or procedural unfairness or irregularities.  We see no basis for intervention.

16.  Turning to the grounds of appeal set out in the Notice of Appeal and the written submissions, we found that they are more or less a repetition of the grounds stated in her supporting affirmation of Form 86 and they are mere assertions of the applicant without substance and basis. With our findings in [15] of this judgment, none of the grounds can stand.

17.  For these reasons, we do not see any prospect of success in the intended application for judicial review. We dismiss the appeal accordingly.

[1] This refers to the risk of violation of the right of 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 or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[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.