RE PUDADERA JEAN CAMARISTA

CACV 153/2023, [2024] HKCA 827

On Appeal From [2023] HKCFI 1284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 153 OF 2023

(ON APPEAL FROM HCAL NO. 1265 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan of 15 May 2023 in which he refused to grant leave to her to apply for judicial review.

2.  The applicant consented on 19 May 2023 for the appeal to be determined on the paper without an oral hearing. 

2)  Background

3.  The applicant is a national of the Philippines.  She last entered Hong Kong as a domestic helper in June 2014.  The applicant’s employment was prematurely terminated and she overstayed.  She lodged a non-refoulement claim on 12 April 2017 by an undated letter[1].  

4.  The basis of the applicant’s claim is that she would be harmed or killed by her husband because of the applicant’s relationship with another man in Hong Kong, and also fear for her creditors for failure to repay her debts[2].

5.  The background facts have been summarized in the decision of the Judge at [2] to [5].

3)  The Director’s Decision

6.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 29 December 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (‘BOR 3’), Bill of Rights Article 2 (right to life)  risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution[3] (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 14 March 2019, the Board dismissed the applicant’s appeal on 29 April 2019 (‘the Board’s Decision’).

8.  The Board found that the applicant’s evidence was generally credible and reliable[4].  The Board found in respect of the incidents of alleged violence by the applicant’s husband, the applicant only sustained minor injuries and she did not seek medical attention.  In respect of her creditors, the Board found that no violence has been inflicted and they gave her no more than a warning[5]. The Board found that there was insufficient evidence to establish any foreseeable and real risk of harm upon refoulement[6]. The Board found there was sufficient state protection and that the applicant can internally relocate within the Philippines[7].

5)  Decision of the Judge

9.  The applicant filed her Form 86 and supporting affirmation on 10 May 2019 but no proper ground for seeking relief was given[8]. 

10.  The Judge held that the applicant had no reasonably arguable basis for the intended challenge.  There was no error of law or procedural unfairness in the Board’s Decision. The applicant has no prospect of success in the intended judicial review application[9].

6)  Grounds of appeal

11.  The applicant in the notice of appeal stated the following :

‘ I would like to inform notice appeal my judicial review application and Appeal Board decision an order of certiorari to bring up and quash. A hearing of this application under 53, Rule 3(3)  of the Rule of High Court Cap 4A If leave judicial review is not granted on the papers’

12.  The applicant in her affirmation exhibited the Judge’s Decision and Order.

13.  In the applicant’s written submission, she stated the following in summary :

(1)  The applicant applies for asylum in Hong Kong as opposed to applying for it in the Philippines.  It is for people who are afraid to return to their own countries;

(2)  The Adjudicator failed to make sufficient inquiry;

(3)  It was wrong to conclude that actions in the applicant’s case were not severe enough to qualify as torture within the statutory meaning;

(4)  The applicant did not want to go back to the Philippines because her life will be in great peril; and

(5)  She referred to section 37 ZO [of the Immigration Ordinance?] without identifying how that relates to her case.

14.  Her submission also referred to India which probably is a typo copied from some proforma documents.

7)  Our view

15.  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

16.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.  None of the arguments raised by the applicant shows the Deputy Judge has made any error of law.

17.  We see no basis to disturb the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.