CAYAO KRISTYL MEI TUPAS v. TORTURE CLAIMS APPEAL BOARD

CACV 467/2021
CACV 575/2021

(Heard together)

[2022] HKCA 833

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 467 OF 2021

(ON APPEAL FROM HCAL NO 1321 OF 2019)

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HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 575 OF 2021

(ON APPEAL FROM HCAL NO 3176 OF 2019)

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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.  There are two appeals before the Court.

2.  The applicant has filed two leave applications for judicial review on 16 May 2019 (HCAL 1321 of 2019)  and 25 October 2019 (HCAL 3176 of 2019)  respectively.  The first application (HCAL 1321 of 2019)  was made against the decision of the Director of Immigration (the “Director”), by way of a letter dated 26 April 2019, refusing to process the applicant’s claim.  It was stated in the letter that:

“In your case, your claim for non-refoulement protection is considered as ‘NOT’ made due to the following reason(s):

Your written signification does not give a general indication of your reasons for claiming non-refoulement protection in Hong Kong, being reasons that relate to an act falling within the meaning of any applicable grounds as set out in the Notice[1].”

3.  Based on a further written signification, the Director subsequently accepted the applicant’s non-refoulement claim.  After assessment, the Director rejected her claim on 12 July 2019 (the “Director’s Decision”).  The applicant lodged an appeal/a petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”)  against the Director’s Decision.  The Board dismissed her appeal/petition on 17 October 2019 (the “Board’s Decision”).  The applicant therefore took out the other application for judicial review (HCAL 3176 of 2019)  against the Board’s Decision on 25 October 2019. 

4.  The two leave applications were heard together on 4 October 2021 before Deputy High Court Judge P. Li (the “Judge”). At the hearing, the Judge dismissed the first application (HCAL 1321 of 2019)  for the reason that it no longer served any practical purpose.  The Judge heard the second application (HCAL 3176 of 2019)  and refused leave on 14 December 2021.

5.  The applicant subsequently filed two Notices of Appeal on 11 October 2021 (CACV 467 of 2021)  and 20 December 2021 (CACV 575 of 2021)  respectively.  The first was against the Judge’s decision of 4 October 2021 dismissing her leave application in HCAL 1321 of 2019.  The second was against the Judge’s decision of 14 December 2021 in HCAL 3176 of 2019 refusing leave to apply for judicial review.  By a letter dated 17 February 2022, the Registrar of Civil Appeals directed that CACV 467 of 2021 be stayed pending the determination of the appeal in CACV 575 of 2021.  In our view, the proper course is for both appeals to be heard together.  As explained to the applicant at the hearing and upon her agreement, we lifted the stay of CACV 467 of 2021 and proceeded to hear both appeals together.

Background

6.  The applicant is a national of the Philippines. She was born in Bacolod City in the Negros Occidental Province in the Philippines.  She first arrived in Hong Kong on 1 July 2009 where she worked as a foreign domestic helper.  She last entered Hong Kong as a foreign domestic helper on 11 August 2018 and she was permitted to remain until 14 December 2019 or within two weeks after termination of her contract, whichever was earlier.  The applicant’s employment contract was prematurely terminated on 2 March 2019. She overstayed until 18 March 2019 and surrendered to the Immigration Department.  She lodged her non-refoulement claims by way of written significations on 16 April 2019 and 2 May 2019 respectively.  A removal order was issued against the applicant on 24 April 2019. 

7.  The applicant claimed that if she returned to the Philippines, she would be harmed or killed by an unknown man (the “attacker”)  who attempted to rape her in 2009.  She claimed that one afternoon on 10 January 2009, her mother asked her to go to a school in Village (or Barangay)  Asia (“Village Asia”)  in the Hinoba-an Municipality to collect some books.  Her mother was a teacher at the school.  The applicant was attacked by the attacker outside the classroom.  The attacker threatened her with a knife and dragged her to the school field where he attempted to rape her.  She screamed and fought back.  The attacker struck her with a piece of stone.  A passer-by intervened and the attacker left.  She was treated at a nearby medical centre for the wound on her head and the bruises over her body.  She was also given dressing and painkillers.  She recovered in a month. 

8.  She claimed that the attacker was powerful and had extensive network in the Philippines, and was a friend of the village head’s son.  She did not know the identity of the attacker.  Her parents privately met an off-duty police officer named Benito Batallones who lived in Village Asia to make an ‘unofficial’ report of the incident.  No formal or official report was ever made to the police.  Subsequently, the applicant decided to come to work in Hong Kong for her safety.  The agent arranged her to stay in the training centre in Manila for 6 months, before coming to Hong Kong on 1 July 2009. 

9.  She returned to the Philippines for about 2 weeks in July 2011 to visit his her sick father.  She stayed at her grandmother’s place in Hinigaran (which was 3 to 4 hours drive from Village Asia).  In July 2018, the applicant returned to the Philippines again as her father had passed away.  She learned from her neighbours in Village Asia that the attacker threatened to kill her if he met her, and that the attacker had joined the New People’s Army (“NPA”).  In Hong Kong, the applicant maintained contact with her mother who told her it was not safe to return to the Philippines.  She thought the police was corrupt and would not help, and that the attacker would be able to locate her in the Philippines.  The details of the applicant’s claim are set out in the Director’s decision at [6] and summarised by the Judge at [2] to [8] of the Form CALL-1[2].

The Director’s Decision

10.  By a Notice of Decision dated 12 July 2019, the Director rejected the applicant’s claim on all applicable grounds on BOR 2 risk[3], BOR 3 risk[4], persecution risk[5] and torture risk[6].  The Director found that there was no real risk of harm faced by the applicant.  She did not encounter troubles during her return to the Philippines in July 2011 and July 2018.  There was no evidence that the government was involved in the attack.  Her fear of being located was speculative.  There was no indication that the police would not assist if a report was made.  There was reasonable state protection in the Philippines and internal relocation to Cebu and Davao was a viable option. 

The Board’s Decision

11.  As against the Director’s Decision on 12 July 2019, the applicant petitioned/appealed to the Board and a hearing took place on 26 September 2019. The Board dismissed the petition/appeal on 17 October 2019.  After considering the case of the applicant and the documents submitted before it, the Board concluded that the core of the applicant’s assertions has been fabricated and wholly unreliable.  The Board found that even though the alleged incident happened on 10 January 2009, the applicant did not apply for protection until 10 years later in 2019 and there was no explanation for the delay (at [21] and [45(b)] of the Board’s Decision).  Furthermore, many aspects of her claim were found to be unreasonable and irreconcilable:

(1)  She was confused about where she stayed when she returned to the Philippines.  It was unreasonable for her to stay hours away at her grandmother’s place in Hinigaran when her father lived and died in Hinoba-an (at [22] to [29], [45(d)] and [61] of the Board’s Decision). 

(2)  She claimed that the attacker was a member of the NPA, but she did not know that NPA was anti-establishment while the village head (of whom she claimed that the attacker was connected to)  was pro-establishment (at [30] of the Board’s Decision). 

(3)  It is not logical for the attacker to target the applicant.  The applicant’s parents had not even lodged any complaint against the attacker.  There was no reason for the attacker to form a lasting feeling of enmity against the applicant (at [45(a)] and [57] of the Board’s Decision).

12.  Given that many of her assertions were hearsay, the Board did not give any weight to a series of hearsay statements made by the applicant in order to show the truth of the matters as alleged (at [46] to [47], [51] to [55] of the Board’s Decision).  In conclusion, the Board found that the applicant failed to satisfy the threshold of the level of torture and/or BOR 2 and 3 risks and/or persecution risks as required for non-refoulement protection (at [58], [65] to [73], [75], [81] to [82] and [89] of the Board’s Decision). 

The Judge’s Decisions

13.  As explained above, the applicant filed two leave applications for judicial review.  The Judge dismissed the leave application in HCAL 1321 of 2019 as it no longer served any practical purpose. 

14.  As to her Form 86 filed on 25 October 2019 which is the subject matter of HCAL 3176 of 2019, she put forward several grounds of judicial review, which can be summarised as follows:

(1)  The Board/the adjudicator was in breach of procedural fairness;

(2)  The Board’s decision to refuse her appeal was unreasonable or irrational in the public law sense;

(3)  The Appeal Form (appeal/petition to the Board)  does not give the applicant the opportunity to reply to the submissions made by the Director;

(4)  The Board made groundless speculations that it was safe for the applicant to return to the Philippines based on unofficial source of news and outdated cases. 

15.  In her supporting affirmation, the applicant stated that the hearing bundle of the petition/appeal was provided to her just 6 days before the scheduled hearing.  She claimed that she did not understand the documents as they were in English and she could not find any language assistance.  She said she answered the questions (from the Board)  honestly but the Board found her credibility questionable.  She repeated that the news reports relied on by the Board were not from reliable sources.

16.  However, at the hearing before the Judge, the applicant indicated that she had no complaint against the Board and the Director. 

17.  After summarising 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. 

18.  The Judge explained at [16] to [19] of the Form CALL-1 that the applicant’s assertion that she did not understand the proceedings in the Board is unreliable.  Further, the adjudicator has rejected her claim on the facts and found the applicant unreliable.  The adjudicator did not rely on any news report as alleged by the applicant.  The Judge was of the view that the reasons of the Board, as summarised by the Judge at [10] of the Form CALL-1, fully support the Board’s Decision:

“10. The applicant attended a hearing on 26/9/2019. The TCAB dismissed the appeal on 17/10/2019. The adjudicator found that the applicant was unreliable. She had fabricated the core assertion of her claim. The adjudicator pointed out the following reasons:

(a)  She initially asserted in the NCF that when she returned to her home village in 2018 to attend her father’s funeral, her neighbours told her about the threat from the attacker. She later corrected her evidence in the interview with the Director. She asserted that she stayed in her grandmother’s place in Hinigaran which was far away from the home village. If she was to attend the funeral of his father, it was unreasonable for her to stay away from her home village. The neighbours could not have informed her about the threat.

(b)  The attacker was a member of the NPA and also derived his power from the connection with the son of the village head. It was pointed out to her that the NPA was anti-establishment while the village head was pro- establishment. She indicated that she did not know this.

(c)  The applicant’s family had not reported the attacker to any authorities. The applicant had done nothing to irritate the attacker. There was no reason that the attacker would maintain a lasting feeling of enmity against the applicant.

(d)  The applicant had delayed her application for non- refoulement protection until 2019. There was no explanation for the delay.

(e)  There was no involvement of any officials. There was no consistent pattern of gross or mass violation of human rights in the Philippines.

(f)    The applicant had not sustained severe physical and mental sufferings.”

19.  The Judge agreed with the Board that the factual basis of the applicant’s claim was not logical and was unreliable.  There was neither error of law nor procedural irregularity, and the Board’s Decision was rational (at [18] of the CALL-1 Form). 

CACV 467 of 2021

20.  This appeal is against the decision of the Judge made on 4 October 2021 dismissing the applicant’s application for leave to judicially review the Director’s refusal to process her claim, on grounds that the reasons she gave (or the lack of reasons thereof)  did not entitle her to non-refoulement protection and did not come within any applicable grounds.  In other words, there was no established non-refoulement claim at that stage and the Director had not made any decision to accept or to reject her claim.  The fact that the Director subsequently accepted her claim based on her further written signification meant that the Director’s previous refusal was water under the bridge.  Her intended judicial review against the refusal to process her claim had therefore become academic and futile. 

21.  The Judge was correct to dismiss her application on grounds that it no longer served any practical purpose.  In a similar vein, the filing of this appeal against the Judge’s dismissal is also academic and serves no practical purpose.  In her written submissions and at the appeal hearing, the applicant has not put forward any reasons or grounds to challenge the Judge’s decision.  We find no error in the Judge’s dismissal and dismiss this appeal. 

CACV 575 of 2021

22.  In the Notice of Appeal filed on 20 December 2021, the applicant raised the following grounds of appeal:

“(i)  The judgment of my HCAL 3176 of 2019, the Honourable Judges did not consider properly my fear, that I would face genuine risk upon refoulement.

(ii)  The judgment in my non-refoulement claim, the Honourable Judges did not consider the fact [of] my claim, which I sought for Judicial Review”

23.  In her written submissions lodged on 25 February 2022, the applicant submits that the Director and the Board failed to properly assess her claims and had taken into account irrelevant consideration; and the Judge did not give sufficient consideration to her fear and the “country of origin conditions” in the Philippines and that she would be in danger if refouled. 

24.  During the appeal hearing, the applicant said she wished the court would give her a chance to stay in Hong Kong until everything is sorted out. 

25.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in 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].  For the purposes of this appeal, the salient principles are as follows:

(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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review.

26.  We also wish to emphasize that, insofar as the applicant seeks to challenge the Director’s decision on 12 July 2019 by way of judicial review, she is bound to fail because as held in Re Moshin Ali [2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board has been pursued and the Director’s decision has been superseded by the Board’s decision.  It is therefore not open to the applicant to challenge the Director’s decision by way of judicial review.

27.  The applicant in her Notice of Appeal stated that the Judge did not properly consider the facts of her claim, her fear and the risks faced by her upon refoulement.  As repeatedly emphasized, the assessment of evidence, relevant COI materials, risk of harm and other factors affecting the level of risks such as the availability of state protection and the options 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.  In the present case, the applicant was not able to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision. 

28.  Similarly, the grounds of relief put forward by the applicant were largely general assertions without particulars and cannot be effective grounds to support a judicial review: Re Mizan Sikder [2019] HKCA 20; Ibrahim v Simon Russell [2019] HKCA 1327; Re Salim Ahmen [2020] HKCA 244.  In relation to her complaint (at [6] of her Form 86)  that she was not given an opportunity to reply to the submissions made by the Director, we note that the applicant was given the opportunity to address the Board on the matters arose, in particular, the Board was also wary of the perceived discrepancies in her case, and the possibility that objective evidence may not be available or accessible to the applicant (at [43] of the Board’s Decision).

29.  In any event, the applicant confirmed with the Judge at the hearing that she had no complaint against the Director Board and the Director.  The Judge has adequately considered and addressed the applicant’s grounds of review at [15] to [19] of the Judge’s Decision. 

30.  Having reviewed the decisions of the Director and the Board and the reasons given by the Judge for refusing leave to apply for judicial review, we agree with the Judge that there is no error of law or procedure in the decisions of the Director and the Board or any unfairness in the process, that the intended judicial review is not reasonably arguable and has no prospect of success, and that leave to apply for judicial review should be refused.  Accordingly, we dismiss this appeal.

Conclusion

31.  The applicant’s two appeals are dismissed.