RE GALANG JOAN SIGUA

CACV 206/2024, [2024] HKCA 912

On Appeal From [2024] HKCFI 1253

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 206 OF 2024

(ON APPEAL FROM HCAL NO 1502 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is the applicant’s appeal against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 22 May 2024 ([2024] HKCFI 1253)  (“the Leave Decision”)  refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 23 May 2019 (“the Board’s Decision”), whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 26 March 2018 (“the Director’s Decision”)  refusing his non-refoulement claim.

2.  We heard the appeal on 25 September 2024.  After the hearing, we reserved our judgment to be handed down in writing.  This is what we do now.

BACKGROUND

3.  The applicant is a national of the Philippines.  He last arrived in Hong Kong as a visitor on 20 October 2003.  He overstayed since 4 November 2003 and was arrested by the police on 18 January 2009.  He made a torture claim on 19 January 2009, which was rejected by the Director on 3 May 2012 and his appeal to the Board was dismissed on 31 May 2012.  On 19 January 2015, the applicant made a further non-refoulement claim on all applicable grounds other than torture risk[1] on the basis that, if refouled, he would be harmed or killed by Alberto Arellano, who was a member of the New People’s Army (“NPA”), because the applicant had an affair with Alberto’s wife, Melody Mangoba.  Details of the applicant’s claim were summarised by the Judge at [4] - [9] of the Leave Decision.

4.  By the Director’s Decision, the Director dismissed the applicant’s non-refoulement claim on all applicable grounds other than torture risk, namely BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.  The applicant appealed the Director’s Decision to the Board.  On 10 January 2019, the applicant attended an oral hearing and gave evidence before the Board.  By the Board’s Decision, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [13] - [16] of the Leave Decision:

“13. The applicant appealed the Director’s 2^nd Decision to the Board. On 10 January 2019, the Board conducted an oral hearing.

14. The Board did not consider the applicant a credible witness or that aspects of his claims were credible. Firstly, there was a significant delay on his part in making the claim, which suggested his intention to remain in Hong Kong rather than fearing harm in the Philippines. The fact that he and Melody returned to Philippines for holiday in December 2001 was also inconsistent with his claimed threat from Alberto earlier. Furthermore, there was a lack of independent supporting corroboration for the applicant’s claim. His feared harm from the NPA was vague and also unreliable, considering that the NPA members simply ran away to avoid the applicant’s neighbours when the former were supposed to be terrorists. Having considered the evidence, the Board did not accept that:

(1)  the applicant was a credible witness;

(2)  the applicant feared harm from Alberto and members of the NPA if he returned to the Philippines;

(3)  he and Melody had been subject to a shooting incident carried out by Alberto and his members of the NPA on 29 December 2001 when they were in the Philippines;

(4)  his claim that members of Melody’s family had received death warnings from Alberto;

(5)  his claim that members of the NPA would seek to harm him on the basis of his claim; and

(6)  his claim that he could not return to the Philippines because he feared harm from Alberto and members of the NPA. [87-93]

15. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk or Persecution risk [10]-[25], [95]-[107].

16.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s 2^nd Decision.”

THE JUDGE’S DECISION

6.  On 3 June 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  He gave no ground of review in his Form 86.  In his supporting affirmation, he merely stated that the Board disregarded his dangerous situation.

7.  As the applicant did not request for an oral hearing, the Judge considered his application on papers.  On 22 May 2024, the Judge refused to grant leave to apply for judicial review. His reasons were stated at [19] - [24] of the Leave Decision:

“19.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

21.  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.’

22.  For the reasons given in paragraph 14, the Board dismissed the applicant’s appeal. The reasons given by the applicant in paragraph 18 is not valid to challenge the Board’s Decision.

23.  There is no valid reason for this Court to interfere with the Board’s finding of the facts of the case. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

24.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

THIS APPEAL

8.  In his Notice of Appeal filed on 27 May 2024, the applicant stated:

“I, GALANG JOAN SIGUA, FILED FOR THE APPEAL BECAUSE I HAVE NOTICE THE SITUATION IN THE PHILIPPINES THAT CONSTITUTES TO AN ERROR OF JUDGEMENT. I WILL BE IN A GRAVE DANGER IF I RETURN BACK TO MY COUNTRY.

I AM FACING PERSECUTION AND BE KILLED.

KINDLY CONSIDERED MY CASE AND KINDLY FIND IN YOUR HEART TO GRANT ME A LIFE PRESERVING JUDGEMENT.” (sic)

9.  Pursuant to the directions of the Registrar of Civil Appeals dated 30 July 2024, the applicant lodged his written submissions on 27 August 2024.  In those submissions, he claimed that Alberto Arellano, who was an active member of NPA which was listed as a terrorist group by the government, would harm or kill him upon refoulement.  He also alleged that internal relocation would not be an option as he did not have sufficient financial resources and his kids had mental and health conditions.  He further claimed that Alberto Arellano had filed an adultery case, the penalty of which would be imprisonment.  He also claimed that here would not be any future waiting for him in his home country and he has the right to live peacefully away from danger and harm.  He alleged that there had been problems with the Board’s assessment as the Board failed to grasp the context in the Philippines and that the procedure was problematic.  He further alleged that there are significant human rights issues in the Philippines including unlawful killing by the authorities and armed individuals as well as life threatening prison conditions.

10.  We heard the appeal on 25 September 2024.  A Tagalog interpreter was present to provide language assistance.  During the hearing, the applicant confirmed that he had nothing to add to his written submissions and reiterated that if refouled, he could be imprisoned owing to the case filed against him in the Philippines.

DISCUSSION

11.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will 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’s decision, the appeal should be dismissed.  The court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

12.  In our view, the applicant’s allegations have no substance.  From the outset, all his allegations have been general and bare assertions without any specific particulars or evidence in support.  Moreover, those complaints are directed mainly at the decisions of the Director and the Board and the applicant did not point out with particulars how the Judge had erred in the Leave Decision.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  He also produces no evidence in support of the alleged adultery case filed against him in the Philippines.  In any event, those allegations are bare and vague and lacked particulars.  His submissions do not constitute proper grounds of appeal.  His intended appeal must fail on this basis alone.

13.  Further and in any event, it is trite that assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: 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].  In our opinion, there plainly are none.  We have considered the Leave Decision carefully and are unable to see any arguable ground of appeal against the decision.  We see no basis to disturb the Leave Decision.

14.  The applicant’s appeal against the Leave Decision has no merit and is dismissed.