MERINO NATIVIDAD DANGBIS v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 161/2020

[2020] HKCA 896

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 161 OF 2020

(ON APPEAL FROM HCAL 555/2019)

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J U D G M E N T

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Hon Pang JA (giving the Judgment of the Court):

Introduction

1.  On 3 June 2020, Deputy High Court Judge K W Lung (“the Judge”) refused 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 (“the Board”) dated 22 February 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 18 May 2018 rejecting the applicant’s non-refoulement claim.

2.  On 10 June 2020, the applicant filed a Notice of Appeal against the Judge’s decision.

Background

3.  The applicant is a Philippine national.  She was previously employed as a domestic helper.  She travelled between Mainland China and Hong Kong after taking up her employment in 2003.  She last entered Hong Kong on 27 February 2005 as a visitor and has overstayed since 1 March the same year. The applicant surrendered to the Immigration Department on 24 August 2009.  She raised a non-refoulement claim on 12 July 2013. 

4.  The applicant’s claim was based on the fear that if she were to return to the Philippines, she would be harmed or even killed by her neighbours, especially one Antonio Almoza who, with his men, had harassed her mother for land that her mother had transferred to her.  The factual background was succinctly summarized by the Judge in [4] – [5] of the Form CALL-1 ([2020] HKCFI 1012).

5.  Because the applicant had a prior torture claim which was unsuccessful before both the Director and the Board, the Director assessed the applicant’s current claim on all applicable grounds that were not previously considered.  By a notice of decision dated 18 May 2018, the Director found against that claim.  The grounds covered by that decision were BOR 3 risk[1], persecution risk[2], and BOR 2 risk[3]. 

6.  The applicant appealed to the Board against the Director’s decision of 18 May 2018.  For that, the applicant attended an oral hearing on 17 January 2017.  Rejecting the applicant’s evidence on the facts, the Board dismissed the appeal on 22 February 2019.  The Board found her evidence to be imagined, exaggerated, illogical and based on hearsay.

Decision of the court below

7.  On 27 February 2019, the applicant sought leave from the court to apply for judicial review against the Board’s decision of 22 February 2019.  As stated in the supporting affirmation for her Form 86, her grounds for seeking relief were:

(1)  Procedural impropriety: failure to conduct sufficient inquiry into the relevant country of origin conditions; the Board failing to consider BOR 2 claim; failure to properly apply para 2 of UN Committee Against Torture General Comment No.2;

(2)  Procedural impropriety/irrationality: failed to give reasons for BOR 3 risk or fail to show sufficient basis to support its conclusion;

(3)  Error /Misdirection in law: failing to take into account the psychological strain and threats to her personally;

(4)  No sufficient basis to conclude that she would not be subjected to torture or BOR 3 risk.

8.  Following a hearing at which the applicant appeared in person, the Judge refused to grant leave to apply for judicial review on 3 June 2020.  The reasons for the refusal were set out at [15] – [19] of the Form CALL-1 ([2020] HKCFI 1012, HCAL 555/2019), as follows:

“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 Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 (CACV 54/2018) at §42 held that the Board’s decision is final, subject to judicial review by the court. However, there is no evidence to show that the Board erred in its finding of the facts or in the application of the laws to the case.

17.  Grounds (1) and (4) are her opinions without any evidence to support them. Ground (2) is not true as the Board had given reasons for BOR 3 risk. Ground (3) was not raised before the Board. It is irrelevant.

18.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

19.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for the intended judicial review. Accordingly, I dismiss her application.”

Appeal to this Court

9.  On 10 June 2020, the applicant filed her Notice of Appeal against the Judge’s decision. Her stated grounds of appeal were that the Judge did not consider the Board’s failure to observe the country of origin conditions report, and that the Judge did not focus on her fear that her claim was not properly assessed for BOR 2 risk, BOR 3 risk and torture risk.

10.  On the same day, the Applicant agreed in writing that the appeal could be heard by 2 judges.

11.  Pursuant to this Court’s directions of 1 September 2020, the applicant duly lodged her written skeleton submissions on appeal on 17 September 2020. In those submissions the applicant raised the following arguments:

(1)  the Board and the Director failed to make sufficient inquiry into country of origin conditions and adopted a passive approach in contravention of the required high standards of fairness;

(2)  the Board and the Director erred by failing to take into account and/or give proper weight to relevant considerations and materials, in particular:

(a)  the applicant would face real risk from her enemies and her life would be in danger if she were refouled;

(b)  the applicant’s severe mental distress;

(3)  the applicant’s claim is not a personal or private dispute, and the Board and the Director failed to assess her fear.

12.  However, in those submissions the applicant did not provide any details or particulars in support of her grounds of appeal or arguments.  Nor did she seek to make any oral supplements in the hearing before us.

Legal principles

13.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of 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].  For the purpose 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.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

14.  As mentioned earlier, the applicant did not in her Notice of Appeal or any subsequent submissions provide any particulars in support of her arguments.  General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

15.  To the extent that these complaints carry any specificity, it is apparent from [15] – [17] of the Judge’s decision that he did consider whether the Board had properly considered country of origin information and had properly assessed the risks facing the applicant, but concluded that there was no evidence that the Board had erred in so doing.  As we would only examine the Judge’s decision in light of the grounds advanced by the applicant, and as there appears to be no viable grounds that point to any error by the Judge, the appeal should be dismissed.

16.  Further, in the present case, the Board rejected the applicant’s claim for non-refoulement protection mainly because of its adverse findings on the reliability of the applicant’s evidence.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds.

17.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis of facts.  The Judge is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

18.  For these reasons, we do not see any prospect of success in this appeal.  Accordingly, this appeal is dismissed.