TOBES HYDIE v. TORTURE CLAIMS APPEAL BOARD

CACV 564/2019

[2020] HKCA 696

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 564 OF 2019

(ON APPEAL FROM HCAL 1130/2018)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  On 4 December 2019, Deputy High Court Judge Bruno Chan (“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 12 June 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 25 August 2017 rejecting the applicant’s non-refoulement claim.

2.  On 9 December 2019, the applicant filed a Notice of Appeal against the Judge’s decision.  On 9 December 2019, she gave written consent for the appeal to be heard by 2 judges.  She further filed a supplemental notice of appeal on 23 December 2019. 

Background

3.  The applicant is a Filipino national.  She last arrived in Hong Kong on 18 July 2008 and was permitted to stay as a visitor until 1 August 2008.  She overstayed and was arrested by police on 9 April 2009.  The applicant lodged a torture claim on 20 April 2009 under the then torture claim screening mechanism, which was rejected by the Director on 24 July 2013.

4.  She subsequently made a non-refoulement claim on 18 November 2013.  The applicant’s claim was based on the fear that, if she returned to the Philippines, she would be harmed or even killed by her former boyfriend and/or by her creditor.  The factual background was succinctly summarized by the Judge in [1] – [8] of the Form CALL-1 ([2019] HKCFI 2454).

5.  By a notice of decision dated 25 August 2017, the Director assessed the applicant’s non-refoulement claim on the grounds of BOR 3 risk[1], persecution risk[2], and BOR 2 risk[3] and determined it against them. 

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 12 April 2018.  The Board found that the applicant faced no risk of serious harm or risk of life from her former boyfriend as she had not seen nor heard from him since 2005.  As regards the creditor, she had not heard about him from her mother after he had taken her mother’s shop.  The Board regarded the loan as settled.  Moreover, the dispute with her creditor was a private money matter. The Board considered that reasonable state protection was available and internal relocation was viable.  Thus the Board dismissed the applicant’s appeal on 12 June 2018.

Decision of the court below

7.  On 19 June 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  In her affirmation in support of her Form 86, she deposed that she wished to have a chance to speak freely in court without feeling nervous due to being re-traumatized by having to recall each tragedy during the Board hearing procedure, and that relocation was not easy due to financial problems.  She asked the court to consider overturning the Board’s decision.

8.  The Judge held a hearing on 17 July 2019 at which the applicant attended in person.  On 4 December 2019 the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [13] – [18] of the Form CALL-1 ([2019] HKCFI 2454, HCAL 1130/2018) as follows:

“`13. On 19 June 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form,and in her supporting affirmation of the same date she merely repeated her claim of fear of harm in the Philippines and that she was unable to properly present her case before the Board due to her nervousness, and asked that the Board’s decision be overturned.

14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant,as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15. In the present case, the Applicant did not make any further representation or elaboration of her claim at the oral hearing of her application before me despite her claim in her affirmation of not being able to do so due to her nervousness, and instead stated that anything needed to be said had already been set out in her affirmation. As such and in the absence of any error of law or procedural unfairness either in the process of her claim or in the decision of the Board being identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

16. Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines,there is simply no justification to afford her with non-refoulement protection in Hong Kong:see TK v Jenkins & anor [2013] 1 HKC 526.

17. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

Appeal to this Court

9.  The applicant’s grounds of appeal set out in the Notice of Appeal of 9 December 2019 and the Supplemental Notice of Appeal of 23 December 2019 asked this Court to reconsider the case and reiterated her fear and difficulty she would encounter upon return to the Philippines.

10.  Notwithstanding this Court’s directions on 15 June 2020, the applicant has failed to lodge any submissions. In the circumstances, in accordance with such directions, the appeal is processed on paper based on materials already lodged.

Legal principles

11.  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

12.  The applicant did not provide any basis for contending that the Judge erred in his assessment of her application for leave.  She did not identify any specific error in the Judge’s decision or any other arguable ground for reversing the Judge’s decision.  A request for reconsideration of the case by this Court is not an effective ground of appeal.

13.  As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

14.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on there being no evidence that her former boyfriend or her creditor were continuing to pursue her and on the basis of the Board’s assessment of state protection being available and internal relocation being viable.  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.  The applicant has not raised any such grounds in the application for judicial review.  Notwithstanding the applicant’s assertions of being nervous, there is no basis for suggesting the hearing before the Board was unfair.

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

16.  For these reasons, this appeal is dismissed.