BRIGILDO NIEL BIDREJO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 425/2020

[2021] HKCA 570

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 425 OF 2020

(ON APPEAL FROM HCAL NO 1461 of 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 24 August 2020 dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 18 July 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 18 December 2017 rejecting his non-refoulement claim.

2.  The applicant is a national of the Philippines.  He started working as a domestic helper in Hong Kong in January 2013 but the employment was terminated in October 2013.  He was later arrested by the police in relation to a blackmail case and he returned to the Philippines. He attempted to enter Hong Kong again on 31 January 2014 with a different name but he was refused entry and arrested.  He was subsequently convicted of making false representation to an immigration officer and sentenced for imprisonment.  Upon his released from prison, he raised a non-refoulement claim on 19 September 2014.

3.  The applicant’s claim was based on his fear of being harmed or killed by various political and terrorist groups, including Moro National Liberation Front (“MNLF”), the Islamic terrorist group of Abu Sayyaf and ISIS, due to his past involvements in them.  The details of the applicant’s claim have been summarised by the Judge at [2] to [4] of the Form CALL-1^[1].  

4.  By his decision dated 18 December 2017  (“the Director’s decision”), the Director rejected the applicant’s claim having regard to the BOR 2 risk^[2] and BOR 3risk^[3] grounds, as well as other statutory and convention rights against torture and persecution.

5.  By its decision dated 18 July 2018 (“the Board’s decision”), the Board dismissed the appeal having regard to all applicable grounds.  Primarily, the Board found inconsistencies and discrepancies in the applicant’s evidence and did not accept that the applicant was ever a member of any of those political or terrorist groups mentioned by him or that he had ever worked as any undercover agent for the government.

Application for leave to start judicial review

6.  On 25 July 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision with the following grounds, as summarized by the Judge at [9] of the Form CALL-1:   

(1)  procedural unfairness in that the Board had unlawfully fettered its decision by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  that the adjudicator had acted in a procedurally unfair manner in dealing with the applicant’s appeal;

(3)  that the Board’s decisions to refuse the applicant’s appeal were unreasonable or irrational in the public law sense or were a result of procedural errors or unfairness;

(4)  that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  that the Board had significantly relied on the source of news which was not officially recognized or was simply hearsay or outdated which resulted in the Board making groundless speculations that it would be safe for him to return to his home country; and

(6)  that the hearing bundle was provided to him only a few days before his appeal hearing with the majority of the documents in English; that there was insufficient time for him to prepare for the hearing due to his limited English; and that being unrepresented he was unable to find any reasonably cheap interpreter to assist him for his appeal.

The Judge’s Decision

7.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to give leave for judicial review.  The Judge gave his reasons in refusing leave to apply for judicial review at [10] to [16] of the Form CALL-1.

8.  Essentially, the Judge held that the applicant’s various complaints were all broad and vague assertions containing only key words and phrases without particulars on how they applied to his case.  As for the hearing bundle, the Judge held that even if the allegations were true, the documents must have been most familiar to the applicant as they were all earlier made available to the applicant when he had legal representation.  The Board’s rejection of the applicant’s case was based on its adverse finding on credibility which it was entitled to make.

Appeal to Court of Appeal

9.  By a Notice of Appeal filed on 3 September 2020, the applicant appealed against the refusal of leave for judicial review on the ground that he would face hardship if refouled and that the Board had relied on source of news which was not officially recognized or simply hearsay.

Skeleton Submissions

10.  In his skeleton submissions dated 25 January 2021, the applicant mentioned some general legal principles and case authorities related to non-refoulement claims but without specifying how those principles related to his case.

Legal Principles

11.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

12.  The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin. 

13.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration^[4] and we will not repeat them here.

14.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong^[5]. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall^[6] are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.  

15.  We heard the appeal on 20 April 2021.  At the hearing, the applicant asked this Court to give him more time to stay here to fix his problem.

Discussion

16.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case.

17.  We are of the view that the matters stated in the notice of appeal and the applicant’s submissions do not constitute viable grounds of appeal.  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  In the present case, the applicant has not pointed to any error in the Judge’s reasons for decision. 

18.  In any event, we have reviewed the Board’s decisions and the Judge’s decision and the reasons they gave for their decisions. We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  The application for leave for judicial review of the Board’s decision was hopeless and rightly dismissed.  There is no basis to disturb the Judge’s decision. 

19.  For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.