PASCARAN MADONNA PASION v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 282/2022

[2022] HKCA 1572

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 282 OF 2022

(ON APPEAL FROM HCAL NO 1024 OF 2019)

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J U D G M E N T

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

1.  On 25 July 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge To (“the Judge”) dated 13 July 2022 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 8 April 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 22 November 2017.

BACKGROUND

2.  The Applicant is a national of the Philippines. She entered Hong Kong as a visitor on 19 July 2016, and was permitted to stay until 2 August 2016. She did not depart from Hong Kong upon the expiry of her limit of stay, and surrendered herself to the authorities on 29 November 2016. On 11 January 2017, she raised a non-refoulement claim on the basis that, if refouled, she would be harmed by her pervious partners, Mhelkee and Mark, because (i) while she was in cohabitation with Mhelkee she had formed a relationship with another man, with whom she bore a son in August 2011, and (ii) she broke up with Mark in around April 2015. She also claimed that she would be killed by the Filipino Police because of the ongoing “drug war” in that country, in view of the fact that Mark was a drug dealer and she had previously trafficked in drugs for him. Details of the Applicant’s claim were summarised by the Judge at §§5-15 of the CALL-1 Form ([2022] HKCFI 2089).

3.  By a Notice of Decision dated 22 November 2017, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s decision to the Board. On 8 April 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§16-20 of the CALL-1 Form, as follows:

“[16] The Board considered the Applicant’s evidence consistent with the bulk of her case and accepted her case as she asserted, except her belief that Mark had reported her drug trafficking activity to the authorities. It held that as a drug dealer himself, Mark would not ordinarily volunteer such information to the authorities. Further, her family, friends and herself had not been approached by the authorities.

[17] In terms of torture risk, the Board did not accept that Mhelkee or Mark were state actors. Although Mhelkee worked as a bodyguard for a congressman, there was no evidence that he (or Mark for that matter) would be able to influence the authorities in the Philippines or to cause the authorities to acquiesce in harming her. Hence, the Board found that the ill-treatment the Applicant received in the past or would likely receive in the future would not fall within the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance to entitle her to protection under Torture Risk ground. Furthermore, the Board also found on the basis of credible Country of Origin Information (‘COI’) that a functioning system of law and order exists in the Philippines. The police force and justice system are reasonably effective and impartial and the authority take reasonable measures to protect lives and safety of its citizens. Hence, the Board found that state protection is available and rejected the Applicant’s allegation that Mhelkee would be able to influence the police generally to withhold protection from her.

[18] As for BOR 3 risk, the Board accepted that the Applicant had suffered ill-treatments from Mhelkee and Mark in the past and that she would have a small but real risk of harm from either of them upon her return. However, she can mitigate that risk by internal relocation to Manila or Cebu. As a resourceful person of some thirty years old, it would not be unreasonable to expect her to relocate internally. Although Mhelkee and Mark may have some resources available to locate her in their local areas, neither of them is likely to have much influence outside their local areas. The Board rejected the Applicant’s claim that Mhelkee or Mark has the connection and ability to locate her anywhere in the Philippines. It also doubted if they would have any incentive to locate her after years of lack of contact. Hence, the Board found that there are no substantial grounds to believe that the Applicant would face a real risk of being subjected to CIDTP, if she returns to the Philippines.

[19] As for Persecution Risk, the Board noted that the Applicant’s disputes with Mhelkee and Mark were private in nature and did not arise out of her race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the protection of 1951 Convention relating to the status of Refugees and its 1967 Protocol.

[20] For reasons given above, the Board did not accept that the Applicant would be at risk of being deprived of her life from Mhelkee or Mark upon her return to the Philippines. In addition, the evidence and information before the Board does not indicate or suggest that the humanitarian conditions in the Philippines are so dire as to render refoulement a violation of life. Hence, the Applicant will not be subject to BOR 2(i) Risk on her return to the Philippines. And as she is not facing any criminal charge punishable by death, BOR 2(ii) to (vi) Risk is not engaged.”

THE JUDGE’S DECISION

5.  On 15 April 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of judicial review was given in either the Form 86 or the Applicant’s affidavit sworn on 15 April 2019 in support of the application.

6.  On 13 July 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[23] The Applicant did not give any specific grounds for judicial review in her Form 86 or in her supporting affirmation. She had been invited by the Court via its letter dated 4 March 2022 to advise the Court of her first language and to file submissions. She did not respond. The letter was sent to her at her address as stated in her supporting affirmation dated 15 April 2019. It has not been returned through the post. There was nothing to suggest the Applicant had moved or has not received the letter.

[24] In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that she disagrees with the finding of the Board that it is safe for her to return to her home country. In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to the Philippines. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

Conclusion

[25] Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. Except for her speculation that Mark had reported her trafficking activities to the authority, the Board assessed the Applicants’ claim on the basis of the case as she asserted. It found on the basis of credible COI and its further finding of fact that she had failed to prove the factual basis to support of her claim. It was on that basis that the Board found that she had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.”

THIS APPEAL

7.  In her Notice of Appeal dated 25 July 2022, the Applicant put forward the following ground(s) of appeal:

“… the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

8.  The Applicant failed to lodge skeleton argument in accordance with the directions given by the Registrar of Civil Appeals on 10 August 2022. Accordingly, she is deemed to have waived her right to have an oral hearing of the appeal and elected to have her appeal disposed of on paper.

DISCUSSION

9.  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 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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

10.  Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.  The Applicant’s complaints in the Notice of Appeal are mere general assertions without particulars, and cannot constitute valid grounds of appeal.

12.  The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 13 July 2022, and has failed to raise any viable ground of appeal against the Order.

13.  The Applicant’s appeal has no merits, and is dismissed.