ROBILLOS ADOLFO DE LA CRUZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 10/2022

[2023] HKCA 415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 10 OF 2022

(ON APPEAL FROM HCAL NO. 163 OF 2019)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (the “Judge”)  given on 31 December 2021 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” and the “Board’s Decision”)  dated 7 January 2019 dismissing the applicant’s petition/appeal against the decision of the Director of Immigration (the “Director”)  dated 24 May 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines.  He arrived in Hong Kong on 18 August 2017 as a visitor with permission to remain until 1 September 2017.  He overstayed and surrendered to the authorities on 4 September 2017 where he lodged a non-refoulement claim on the same day.

3.  The applicant claimed that if he returns to the Philippines, he would be harmed or killed by a local police officer and/or his fellow policemen over a car parking dispute in a housing estate where he lived. According to the applicant, he ran a trucking services business in the Philippines in 2004. One evening on 16 November 2016, the applicant had a heated argument with another driver over the same parking space when that man identified himself to be a local police officer named “DF”.  DF subsequently lodged a complaint against the applicant to the village head. A week after the incident, the applicant was required by the local police to attend a rehabilitation briefing at the station for drug offenders, and was told to return for further sessions the following week. The applicant suspected that DF was taking revenge against him by implicating him in drug offences and use this as an excuse to kill him.  The applicant became fearful for his life and fled to other towns in Pangasinan and Nueva Vizcaya. He eventually left the Philippines on 1 June 2017.  The details of the applicant’s claim are set out by the Board at [8] in the Board’s Decision, and summarised by the Judge at [2] to [5] of the CALL-1 Form ([2021] HKCFI 3897).

The Director’s Decision and the Board’s Decision

4.  By a Notice of Decision dated 24 May 2018, the Director rejected the applicant’s claim based on all applicable grounds on BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and torture risk[4].

5.  The applicant petitioned/appealed to the Board and a hearing took place on 28 August 2018. The Board dismissed the petition/appeal on 7 January 2019. The Board considered the applicant’s claim on all applicable grounds. At [62], [64] and [76] of the Board’s Decision, the Board accepted that the applicant was embroiled in a dispute with DF and that he was falsely accused of being a drug user which led to his fear and flight for his personal safety.

6.  However, the Board found at [80] of the Board’s Decision that the applicant did not endeavour to seek assistance from anyone in relation to his situation, either at the local Barangay level or at any other level, when there were available options and sufficient legal mechanisms for him to do so. The main reasons for that finding were that according to the Country of Origin Information (“COI”), there appears to be much more scrutiny on police operations in the anti-drug campaigns and their way of investigating drug offences has improved. The Board considered those COI extensively at [63], [66] to [70], [72] to [79] of the Board’s Decision, and concluded that there was insufficient evidence to find that the applicant would face a genuine and substantial risk of being subjected to torture or cruel, in human and degrading treatment or punishment, when the applicant was able to relocate to his wife’s and mother’s house without being traced. The Board also found that the applicant did not have a well-founded fear or persecution as internal relocation was a viable option ([81]-[82] of the Board’s Decision).

The Judge’s Decision

7.  The applicant filed a Form 86 on 17 January 2019 for leave to apply for judicial review of the Board’s Decision, but he did not put forward any ground for seeking relief in his Form 86. In his supporting affirmation of the same date, the applicant stated that he would like to reject and review the decision of the Immigration Department as it disregarded his dangerous situation in his home country.

8.  The applicant did not request an oral hearing before the Judge, who accordingly dealt with the application on paper.

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 give leave for judicial review.  The Judge gave the following reasons at [10] to [15] of the CALL-1 Form:

“ 10. On 17 January 2019, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same he merely stated that he rejects the decision as it disregarded his dangerous situation in his home country but without providing any particulars or elaborations as to how it did so, nor did he put forth any other proper ground for his intended challenge or request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

11. 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 the 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] HKCA246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12. In the Applicant's case, the Board did not take issue with his claim of fear of harm from a local policeman over a car parking dispute but found no evidence or reasonably arguable basis that he would face any real risk of harm from anyone upon his return to his home country for the very thorough and detailed analysis and reasoning set out in paragraphs 61 - 94 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13. The fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant's claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see K v Jenkins & Anor (2013] 1 HKC 526.

14. 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.

15. 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 his leave application.”

Grounds for appeal

10.  In the Notice of Appeal filed on 5 January 2022, the applicant simply stated that he wants to challenge the decision.

11.  The appeal was originally listed to be heard on 28 March 2022.  The applicant was directed to lodge two sets of skeleton argument on or before 28 February 2022 and was warned that if he failed to do so, he would be deemed to have waived his right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  However, the applicant did not lodge any skeleton argument in support of his appeal.

12.  As the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated.  We have proceeded to consider this appeal on paper based on the available materials.

Discussion

13.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in 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 purposes 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. An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review.

14.  The applicant did not in his Notice of Appeal identify any error in the Judge’s decision or advance any ground for reversing the Judge’s decision.

15.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection as he had failed to make out a case on any of the applicable grounds.  The Judge correctly pointed out that the Board did not take issue with his claim of fear of harm from a local policeman over a car parking dispute but found no evidence or reasonably arguable basis that the applicant would face any real risk of harm from anyone upon his return to the Philippines.  We agree with the Judge’s observations that the Board gave a thorough and detailed analysis and reasoning at [61] to [94] of the Board’s Decision, with the benefit of hearing the applicant in his oral evidence and his answers to questions raised of his claim.  Such findings are primarily within the province of the Board and the Judge was not entitled to intervene in the Board’s Decision since no valid public law grounds had been shown.

16.  Having reviewed the decisions of the Director and the Board and the reasons given by the Judge for refusing leave to apply for judicial review, we agree with the Judge that there is no error of law or procedure in the decisions of the Director and the Board or any unfairness in the process, that the intended judicial review is not reasonably arguable and has no prospect of success, and that leave to apply for judicial review should be refused.

17.  Accordingly, we dismiss the appeal.