RE SARABIA GLEN GENOVIA

CACV 351/2023, [2024] HKCA 143

On Appeal from [2023] HKCFI 2672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 351 OF 2023

(ON APPEAL FROM HCAL 1138 OF 2019)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal against the order made by Deputy High Court Judge K W Lung (“Judge”) on 2 November 2023 refusing to grant leave for judicial review (“Judge’s Decision”). The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) given on 18 April 2019 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 22 March 2018 (“Director’s Decision”).

Bases and allegations in support of NRF Claim

2.  The bases of the NRF Claim made by the applicant, a national of the Philippines, are fears of being harmed or killed by (1) the boyfriend (“Boyfriend”) of the applicant’s separated wife and (2) by a childhood friend known as Arman Mayormente (“Arman”).

3.  The two incidents, which allegedly gave rise to the applicant’s claimed fears and which eventually led to his leaving the Philippines to seek non-refoulment protection in Hong Kong in 2015, both occurred in 2003. The two incidents have been set out in paragraph 6 of the Director’s Decision, paragraphs 7 to 9 of the Board’s Decision and [5] of the Judge’s Decision embodied in the Form CALL-1 [2023] HKCFI 2672 (“Form CALL-1”):

(1)  In about 2003, the applicant bumped into the Boyfriend. By then, he had already been separated from his wife. The Boyfriend and his friends assaulted the applicant with fists, causing bruises and bleeding in the applicant’s eyes. The Boyfriend told the applicant to stay away from the wife. The applicant stayed in hospital for a week for treatment.

(2)  Also, in about 2003, the applicant played basketball against a team led by Arman, with each side putting down 2000 Philippine Pesos as bet. The applicant’s team won. Arman got angry and demanded the applicant to return the bet money, failing which he would kill all members of the applicant’s team. The applicant finally returned the bet money to Arman.

4.  In fear of the Boyfriend, the plaintiff moved to Manila in 2003 after he was discharged from hospital. From 2008 to 2011, he worked in Saudi Arabia. Upon completing his work in 2011, he returned to Manila where he stayed until 2015 when he left for Hong Kong. In the 12 odd years running from the occurrence of the two incidents in 2003 until he left the Philippines for Hong Kong in 2015, the applicant had never encountered the Boyfriend or Arman again.

Entry into Hong Kong and lodgement of NRF Claim

5.  The applicant left the Philippines and entered Hong Kong on 24 October 2015. He was permitted to stay as a visitor until 7 November 2015. He did not depart on or before 7 November 2015 and has been overstaying since 8 November 2015. On 13 January 2016, he surrendered himself to the Immigration Department.

6.  He lodged the NRF Claim on 10 April 2017.

Director’s Decision

7.  After considering the information provided by the applicant in his non-refoulement claim form dated 31 January 2018 and at the screening interview with the Director’s representative(s) on 23 February 2018, at which time the applicant was legally advised and represented by the Duty Lawyer Service, the Director found the NRF Claim unsubstantiated under all the 4 applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

8.  To sum up, the Director found:

(1)  The intensity and frequency of past ill-treatment are low. The applicant had only been attacked by the Boyfriend once and been threatened by Arman once in 2003. Thereafter, nothing had happened to him before he fled to Hong Kong in 2015.

(2)  There is no real risk of his being harmed or killed by either the Boyfriend or Arman if he returns to the Philippines.

(3)  The disputes with both the Boyfriend and Arman are private disputes without involving the state, organs of the state or public officials. Persecution risk and torture risk are not engaged.

(4)  In any event, reasonable state protection and internal relocation alternatives are available to the applicant to lower or even negate the perceived risk of harm.

Appeal to Board and Board’s Decision

9.  The applicant appealed to the Board.

10.  The Board conducted a rehearing of the NRF Claim on 11 March 2019, which the applicant attended to give evidence and answer the Board’s questions through an English/Tagalog interpreter.

11.  The Board dismissed the appeal on all 4 applicable grounds. The Board found that:

(1)  For torture risk, the sufferings of the applicant as a result of his encounters with the Boyfriend or Arman in 2003 do not meet the minimum threshold for them to be regarded as torture. Therefore, the applicant had never been subjected to torture in the past. There is no evidence (except hearsay) to support that the applicant will face torture if he returns to the Philippines. This ground also failed for the additional reason that the applicant’s respective disputes with the Boyfriend and Arman are both private matters.

(2)  For BOR3 risk, similarly, the applicant was not subject to torture in the past and it is not accepted he will be subject to torture or CIDTP within the meaning of BOR 3 upon refoulement.

(3)  For persecution risk, the applicant had failed to establish in evidence there is such a fear. In any event, such fear, if any, will not be based upon any of the prohibited reasons under the Refugee Convention.

(4)  For BOR2 risk, the applicant failed to establish in evidence a personal and real risk of life upon his return to the Philippines.

Application for leave for judicial review and Judge’s Decision

12.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 1138/2019 on 29 April 2019, the applicant applied for leave for judicial review of the Board’s Decision. The applicant did not request an oral hearing and the leave application was disposed of by the Judge on paper.

13.  The applicant did not state any proposed grounds in the Form 86. The proposed grounds as stated in the supporting affirmation is summarized by the Judge at [12] of the Judge’s Decision as follows:

“12. In his affidavit in support of his application, the applicant referred to the Director, whom I shall take him as the adjudicator of the Board. He said:

(i) the Board failed to consider his fear of harm from the boyfriend of his wife and his childhood friend and he was beaten by his wife’s boyfriend in a shopping mall;

(ii) the Board failed to consider the COI and that the police cannot protect him from his enemies;

(iii) the Board did not assess BOR 3 risk properly; and

(iv) the Board did not consider that he will suffer mentally and physically.”

14.  The Judge refused to grant leave for the reasons stated at [13] – [18]:

“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 Decision 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. The Board had, for the reasons set out in paragraph 9, supra concluded that the applicant had failed to establish his claimed fear if he returns to the Philippines.

17. Those grounds under paragraph 12 are not valid grounds to challenge the Board’s Decision. Ground (i) to (iii) are his own opinion without evidence in support. Ground (iv) does not assist as he had not raise (sic) it before the Board for consideration.

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

Appeal to Court of Appeal - grounds of appeal and submissions

15.  By the notice of appeal filed herein on 8 November 2023, the applicant appealed against the refusal of leave for judicial review, on the ground that he does not want to go home yet because his life is still in danger.

16.  In his written submission dated 29 December 2023, he said:

(1)  His creditor wanted to kill him because he had borrowed money from his neighbour, known as Maria. But he did not return the money after he had come to Hong Kong.

(2)  He lodged a NRF claim but he was disbelieved by his case officer and the Board made many errors.

(3)  He applied for leave for judicial review from the High Court but the High Court gave a “one eyes judgement” without an oral hearing. All the points he raised were not considered at all. The High Court judgment was wrong. The High Court did not find the errors made by the Board.

17.  The applicant did not appear at the hearing of the appeal on 30 January 2024, despite having been given notice of the date and time of the hearing. This judgment is therefore based on the written material before the court.

Discussion

18.  In view of the manner in which the applicant has conducted the application before the Judge and the appeal before us, we can dispose of this matter shortly.

19.  First, the role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. Nor could an applicant rely on material which has not been produced before the Board or the Director to contend that they had erred in not taking such material into account unless the decision makers have a positive duty to elicit such materials on their own volition. See Nupur Mst Director of Immigration [2018] HKCA 524 at [14(1)] and [14(5)].

20.  Second, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board (or that of the Director) afresh. What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere if and only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst Director of Immigration at [14(2)] and [14(4)].

21.  The applicant’s proposed grounds for review as set out in the supporting affirmation are either bare assertions of the Board’s failure to consider matters the assessment of which rests with the Board, or matters which were not raised before the Board at all. The applicant did not identify any error of law, procedural unfairness or irrationality on the part of the Board in dismissing his appeal against the Director’s Decision.

22.  That being the case, the applicant’s proposed judicial review would have been hopeless and leave was rightly refused. In such circumstance, we cannot see how it can be contended that the Judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.

23.  Nor did the applicant identify in the notice of appeal or written submission before us any of the said bases upon which the Court of Appeal can disturb the Judge’s Decision. Clearly the Court of Appeal should not entertain the newly raised matters concerning his creditors (the relevance of which is questionable anyway). The assertions that the Director did not believe him and the Board had made errors are devoid of particulars. The allegation that the Judge’s Decision did not consider all the points raised by the applicant was plainly untrue. It was also appropriate to dispose of the leave application without an oral hearing given that the applicant did not ask for one.

24.  In any event, we have anxiously examined the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.

Disposition

25.  For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.