RE LUGAY JOY GRACE SEVILLANO

CACV 206/2022

[2022] HKCA 1353

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 206 OF 2022

(ON APPEAL FROM HCAL NO 912 OF 2019)

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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 K W Lung (“Judge”)  on 10 May 2022[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 4 March 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 20 June 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a Philippine national of Ilonggo ethnicity, born in 1989.  She originally hails from the province of Negros Occidental, in the southern Philippines.  She arrived in Hong Kong on 28 July 2017 and was permitted to remain as a visitor until 11 August 2017.  However, she did not depart, and has overstayed.  On 6 September 2017, she was arrested by the police and was referred to the Immigration Department the next day.  She raised her non-refoulement claim on 7 September 2017.

3.  The applicant’s claim was based on the fear that, if she returned to the Philippines, she would be harmed or even killed by her husband, who is a member of the New People’s Army (“NPA”), a Communist insurgency that has been designated as a terrorist organization, and had repeatedly battered and brutalized her due to her refusal to join the NPA.  The factual background was set out at paragraphs 7.1 to 7.16 of the Director’s decision.

4.  The applicant’s claim was assessed by the Director as a claim that if she returned to the Philippines she would be ill-treated or even killed by her husband because she had refused to join the NPA.  By notice of decision dated 20 June 2018, the Director assessed the applicant’s claim on all the applicable grounds and determined it against her.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 6 December 2018, during which the applicant gave oral testimony and answered questions from the Board.  The claim as advanced by the applicant in the Board appears to have become wider in that the applicant claimed she was in fear of being ill-treated or even killed not only by her husband but also by members of the NPA upon her return to the Philippines.  The Board noted that the applicant had produced no independent evidence to support her claims and that it had to focus on her assertions to assess her credibility.  The Board considered that as the applicant was clearly strongly against the NPA, it did not make sense why her husband would insist on her joining it, as she would be unlikely to make any contribution and would only bring risks to the NPA.  The Board found that the applicant had no basis to believe that the police had connections with the NPA, which belief was contrary to the applicant’s knowledge of the animosity between the police and the NPA.  The Board did not believe that the applicant did not even try to make a report to the police because of such an unfounded belief.  The Board also noted that the applicant knew that her visa for Hong Kong was only for 14 days and she said she never intended to overstay.  Yet she apparently borrowed 20,000 pesos for travel expenses to Hong Kong.  The Board also noted that the applicant did not seek help from the authorities or other organisations in Hong Kong after her arrival in late July 2017 but simply overstayed, and that she only lodged a non-refoulement claim after she was arrested on 6 September 2017.  The Board considered that these matters cast doubt on her version of departing the country in order to avoid her husband.  In the end, the Board found the applicant’s evidence incredible and unreliable.

6.  In addition, after considering the country of origin information (“COI”), the Board found that the applicant could seek help in the Philippines from the local police or other authorities, and that effective state protection was available.  The Board also found that internal relocation was a reasonable and safe option for the applicant, who was then aged only 29 with 14 years of formal education and one year’s work experience.

7.  As a result, on 4 March 2019, the Board dismissed the applicant’s appeal in respect of all applicable grounds.

Decision of the court below

8.  On 3 April 2019, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  The applicant set out certain “headline” grounds of review in the body of her affidavit.  She also included in the exhibit a document with the heading “The Ground[s] for the Application are as follows”.  But it is clear that that document had been taken from another case, for it refers to an application for judicial review filed on 7 June 2017, violence towards minorities, conditions in Pakistan, telephone conversations with one Niraj, and lack of opportunity to submit additional facts for a BOR 2 claim, none of which has any relevance at all to the applicant’s case.  That document should in our view be ignored.  Focusing on the affidavit itself, the following headline grounds can be discerned:

(a)  the Board failed to make inquiry into COI and failed to fully consider the COI reports in assessing the risks to the applicant; 

(b)  the Board’s decision was irrational because it failed to place weight on relevant information and selectively placed weight on irrelevant information;

(c)  there was no reasonable basis for rejecting the credibility of the applicant’s claim; and

(d)  there was no proper basis for consideration of internal relocation.

9.  Following consideration of the documents only, on 10 May 2022 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal of leave were set out at [12] – [16] of the Form CALL-1 as follows:

“ 11. In her affidavit in support of her application, the applicant has raised the issues of irrationality, procedural impropriety, failure to give adequate reasons, failure to consider the extended form of state acquiescence and failure to fully consider the COI in assessing the risks.

12. 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14.  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.’

15.  The grounds as raised by the applicant in support of her application are the general principles for administrative law without any specific evidence or are her opinions or comments only. They do not constitute any valid ground for her application. The Board had considered her evidence and was entitled to form its views on the facts of her case.

16.  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.”

Appeal to this Court

10.  On 19 May 2022, the applicant filed her Notice of Appeal against the Judge’s decision, in which she stated that she wished to challenge the decision, but did not raise any specific grounds of appeal.

11.  The applicant lodged written submissions on appeal on 4 August 2022, in which she repeated that she could not go back to her country because she would be harmed and killed by her ex-husband as she had refused to join the NPA.  However, she did not raise any specific grounds of appeal.

12.  At the hearing, the applicant stated that her husband’s uncle had also been attacked because he did not want to join the NPA.

Discussion

13.  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. 

14.  As the applicant has failed to advance any proper ground of appeal seeking to identify some specific error in the Judge’s decision, her appeal should fail for that reason alone.

15.  We have nevertheless gone further and examined the Board’s decision.  In this case although the applicant has not condescended to particulars in her challenge against the Board’s decision, we have to say that we do not find the reasons given by the Board for doubting the applicant’s evidence entirely satisfactory.  For example, the Board said that it was incredible or against common sense for the applicant to suggest that her husband forced her to join the NPA even though she was strongly against it and that she was too afraid to report to the police because of possible connections the NPA had in the police.  In assessing claims for non-refoulement protection it is necessary to bear in mind that what seems “common sense” in Hong Kong may not do so in the context of a different place, and vice versa: ST v Betty Kwan [2014] 4 HKLRD 277 at [43].  It would have been better if the Board had explained its reasoning in greater detail and with greater sensitivity to the factual context of the applicant’s claim.  Further, it rightly attracted the attention of the Board that the applicant did not claim protection soon after arrival in Hong Kong but only did so after being arrested 40 days later, but the Board did not set out what the applicant’s explanation was.  Nor did the applicant explain it in the documents filed subsequently in court for her application for judicial review.  It would have been better if the Board had elaborated upon its central concerns in a way that encompassed the applicant’s responses if any.  Having said this, it is important for the court to recall the proper limits and functions of judicial review and that it is not for the court to substitute its own opinions on matters of fact and credibility, unless the Board’s findings are vitiated by some error of law or procedural irregularity, or are so unreasonable as to be irrational.  The applicant has not advanced such a case, nor do we think an error is obvious on the face of the materials before us.

16.  It should be noted, moreover, that the Board found that internal relocation was viable for the applicant.  The Board considered that there was no basis to fear that the applicant’s husband or NPA would or would be able to conduct a nationwide search for her if she chose to reside and work in another part of the Philippines, which has a population of more than 107 million.  The applicant has not been able to advance any reason why this conclusion was in any way flawed or inconsistent with the COI materials before the Board.  In her submissions in this court the applicant has again referred to her fear of being harmed and killed by her husband.  She has not however been able to explain why she would not be reasonably safe upon her return if she relocated to a different part of the Philippines far away from him.  On that basis there was no reasonable prospect for the applicant to be able to impugn the Board’s decision to refuse non-refoulement protection.

17.  For these reasons, we consider that the applicant has failed to show any grounds for impugning the Judge’s decision to refuse leave to apply for judicial review.  We dismiss the applicant’s appeal accordingly.