RE BAIT FLETCHER JADE BESQUILLO

CACV 40/2024, [2024] HKCA 511

On appeal from [2024] HKCFI 180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 40 OF 2024

(ON APPEAL FROM HCAL 1342 OF 2019)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”)  given on 25 January 2024 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 8 May 2019 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 31 October 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines.  He entered Hong Kong on 29 January 2018 as a visitor, but had overstayed and was arrested by the police on 17 April 2018.  He thereafter lodged a non-refoulement claim by way of written submissions dated 18 and 20 April 2018.

3.  The applicant’s claim was based on a fear of being harmed or killed by a Mr Siegfredo Betita, the Mayor of Carles, due to a dispute which involves the Mayor’s alleged involvement in drug trafficking.  The details of the applicant’s claim have been summarised by the Judge at [5] to [8] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 31 October 2018 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.  The applicant appealed against the Director’s Decision to the Board, for which an oral hearing was held on 26 February 2019. The Board accepted that the applicant faced a small but real risk that he would suffer serious harm from or on behalf of the Mayor of Carles should he return to the Carles area (Iloilo province)  in the Philippines (see [69] of the Board’s Decision).  However, such risk would be negated or substantially reduced should the applicant relocate internally to another area in the Philippines, such as Manila or Cebu (see [71]-[89] of the Board’s Decision).  Therefore, the Board held that the applicant’s risk of harm outside the area of Carles, Iloilo province, is remote.

6.  Accordingly, the applicant’s appeal was dismissed by the Board’s Decision dated 8 May 2019.

The Judge’s decision

7.  The applicant filed a Form 86 on 20 May 2019 seeking to judicially review the Board’s Decision but did not set out any grounds for review.

8.  In his supporting affidavit filed on the same day, the applicant deposed that the Board’s Decision was “procedurally unfair”, improper, and failed to make “full and proper inquiries into relevant COI”.  He also complained that no “translation and legal assistance” was provided.

9.  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 grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [16] to [26] of the CALL-1 Form: 

“16. The applicant has filed Form 86 dated 20 May 2019 for leave to apply for judicial review of the Board’s Decision.

17. In his affirmation and in support of his application, the applicant said the Board was unfair as it had failed to make a full and proper inquiry of the country of origin information and he was not provided with legal assistance or transaction service and he did not understand the Board’s Decision.

DISCUSSION

18. 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).

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

20. 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.’

21. The Board had, for the reasons given, accepted the facts as alleged by the applicant, but concluded that he will not be subjected to real harm either from the police or from Mayor in Carlies as he may relocate himself if he returns to the Philippines.

22. As to the grounds in paragraph 17, it is only his opinion that the Board was unfair for not making a full enquiry of the COI. The Board had, in the Board’s Decision, made references to the COI. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

‘22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004)  7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.’

23. The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

‘16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.’

24. There is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

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

Grounds for appeal

10.  In the Notice of Appeal dated 2 February 2024 but filed on 16 February 2024, the applicant set out his grounds of appeal, which may be summarised as follows:

(1)  he was prejudiced or otherwise disadvantaged in the proceedings below because he was unrepresented and had a “language incapability”, which rendered the relevant decisions “procedurally unfair”;

(2)  the Judge failed to consider the significance of such alleged prejudice or disadvantage;

(3)  no hearing was fixed by the Judge for the determination of his application.

11.  In his written submissions dated 30 April 2024, the applicant essentially repeated the contentions as set out in his Notice of Appeal.

12.  We heard the appeal on 28 May 2024.  The applicant appeared at the hearing, and stated that he wished to remain in Hong Kong until the expiry of the current term of the Mayor in his local city, but otherwise had nothing to add to the matters already stated in his Notice of Appeal and written submissions.

Discussion

13.  The applicant has in the Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

14.  In the application in the court below, the applicant provided no particulars as to any respects in which the Board was unreasonable or unfair in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

15.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

16.  The applicant’s complaint of prejudice by reason of his lack of proficiency in English is unfounded and of little or no merit.  We note that he was able to, either by himself or with assistance from others, lodge with the court applications and submissions written in comprehensible English.

17.  We are equally unpersuaded by the applicant’s complaint of a lack of legal representation, as it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

18.  Finally, the applicant did not request an oral hearing in his Form 86 (nor in his supporting affidavit).  In fact, the applicant himself acknowledged that he did not so request (see [5] of his written submissions).  In the circumstances, namely the lack of a request for an oral hearing, the Judge was entitled to determine the applicant’s application for leave for judicial review on the papers (see O.53 r.3 of the Rules of the High Court (Cap 4A)).

19.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.