RE SACDALAN MARIO CAPISTRANO

CACV 419 /2022, [2024] HKCA 51

On appeal from [2022] HKCFI 2956

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 419 OF 2022

(ON APPEAL FROM HCAL NO. 710 OF 2019)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”)  given on 18 October 2022[1] refusing to grant him leave to judicially review of the decisions of the Director of Immigration (“the Director”)  and the Torture Claims Appeal Board (“the Board”)  concerning his non-refoulement protection claim.

2.  The applicant has lodged a written submission to support his appeal.  On 24 October 2022, he consented to the disposal of his appeal on paper by the Court of Appeal. 

The applicant’s claim

3.  The applicant is a national of the Philippines aged 45.  Between 2010 and 2013, he was permitted to work in Hong Kong as a domestic helper.  He last entered Hong Kong on 25 March 2014 and was permitted to remain as a visitor until 4 April 2014.  He overstayed and was arrested by the police on 2 September 2014.  He raised a non-refoulement claim based on his fear of being harmed or killed by members of the illegal jueteng gang because they believed he was responsible for their arrest.  The details of his claim were set out in [6] of the Director’s decision.  

4.  In gist, the applicant claimed that during the time he was working in Hong Kong, his then wife let a room in their house to the gang for operating jueteng, which is an illegal number game played in the Philippines.  When he returned home in 2013, he asked the people to move out because he did not want his family to get into trouble.  After an argument, the people moved to another house.  A few days later they were arrested by the police.  Thereafter some unknown people came to his house and his mother’s place to look for him. Fearing for his safety and following the advice of his mother and wife, the applicant left the Philippines for Hong Kong.  

The Director’s and the Board’s decisions

5.  By a Notice of Decision dated 6 June 2018, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. 

6.  The applicant’s appeal against the Director’s decision was heard before the Board on 28 November 2018, during which the applicant gave evidence and answered questions from the Board.  By a decision dated 6 March 2019, the Board dismissed the appeal.  The Board accepted as plausible that his former wife had rented a room to the jueteng gang, he had an argument with the tenants when he asked them to move during which the tenants said that if he tried having them arrested then he would see what would happen to him and his family, and the tenants later did move out.  However, for the reasons stated in [39] to [43], the Board, however, had serious doubts about whether the tenants were arrested by the police after they moved premises and whether they blamed the applicant for this.  The Board also took the view that given the lapse of time, it was implausible that these people would still have interest in the applicant.  The Board did not accept that it was unsafe for the applicant to return to the Philippines or he faced any real risk of harm upon his return.  The Board concluded that the applicant failed to show he was entitled to non-refoulement protection on any of the applicable grounds.

The Judge’s decision

7.  The applicant filed a Form 86 and affidavit on 13 March 2019 to seek leave to apply for judicial review against the decisions of both the Director and the Board.  Other than asserting in the affidavit that his life was under threat and the gang was still looking for him, the applicant did not provide any grounds in support of the application.

8.  The Judge dealt with the leave application on paper.  By a Form CALL-1 dated 18 October 2022, he dismissed the application and gave his reasons at [13] to [18] as follows: 

“13. 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).

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

15. 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.’

16. Those grounds in paragraph 12 above had been considered by the Board and they are not valid reasons to challenge the Board’s Decision.

17. 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.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

The appeal

9.  By a notice of appeal dated 24 October 2022, the applicant appealed the Judge’s decision to this court.  He stated the following in the notice of appeal as his grounds of appeal:

“I am not satisfied with the Decision because it’s away [from] facts and reality which are related with my case. There is no any transparency in these Decision. Please accept my application and allow me to process further my case.”

10.  The written submission made the following additional points:

(1)  The applicant came to Hong Kong because he was not safe in his country.  If he were to return home at this point, his life would be worse.

(2)  Many things related to the applicant’s case had been ignored.  The situation in his country was different from what people thought. It was hard for the applicant to live and to face his enemies.  They exercised political influence and controlled the police and other authorities. It was difficult to get justice under the corrupt environment. 

(3)  The applicant’s well-wishers were doing their best to help him solve his problem.  There might be some fruitful results in future, but it is unsafe at this moment for him to return home.

Our reasons for decision

11.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In sum, 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 Country of Origin Information 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.

12.  We are of the view that the matters and arguments stated in the notice of appeal and the written submission have no merits.  Firstly, other than making some general assertions, the applicant has not identified any specific error in the Judge’s decision and reasons, or the Board’s decision and reasons. Secondly, the Board had given careful consideration to the applicant’s claim and given full reasons for not accepting that the applicant would face any harm or real risk of harm if he were to return to his home country.  The points raised by the applicant fall short of showing any error or irrationality in the Board’s findings and conclusion.  In the circumstance, the applicant’s assertion that it would be unsafe for him to return to the Philippines simply cannot stand.  

13.  We have separately considered the decisions that the applicant seeks to challenge.  We do not discern any legal errors, irrationality or procedural irregularities.  We agree that the intended judicial review has no prospect of success, and the Judge is correct in refusing to give leave to apply for judicial review. 

14.  As there is no merit in the appeal or the intended application for judicial review, we dismiss the appeal.