ARELLANO ARIEL GONZAGA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 182/2024, [2024] HKCA 983

On Appeal From [2024] HKCFI 1077

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 182 OF 2024

(ON APPEAL FROM HCAL NO 1361 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”)  on 30 April 2024[1] refusing 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 (“Board”)  dated 10 May 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 10 July 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines born in 1967.  He first entered Hong Kong on 1 November 2016 as a visitor permitted to stay until 15 November 2016.  However, he overstayed and later surrendered to the Immigration Department on 6 December 2016.  He raised a non-refoulement claim by way of written signification on 16 December 2016.  The applicant’s claim was made on the basis that if he returned to the Philippines, Commander Alvin of the New People’s Army (“NPA”)  and his associates would harm or kill him because he left the NPA and surrendered to the Philippines military in early 2016.  The factual background of the applicant’s claim was set out at [10] to [15] of the Board’s decision.

3.  By notice of decision dated 10 July 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 30 January 2019, during which the applicant gave evidence and answered questions from the Board.  In favour of the applicant’s credibility, the Board accepted that the applicant was involved with the Kabataang Makabayan (a network of students with socialist ideals which later became the Communist Party of the Philippines and the NPA)  and the NPA during his youth and early adulthood in the late 1980’s and early 1990’s.  However, assessing the applicant’s evidence in its totality, the Board found there were “multiple significant anomalies” which led it to conclude that central aspects of his circumstances were not as he had claimed. Thus, the Board did not accept, inter alia, that the applicant was involved with the NPA beyond that time period, that he had surrendered from the NPA in 2015 or 2016 to the Philippines military, that he had been pursued by Commander Alvin or others of the NPA to be harmed or killed as alleged, or that his alleged claims could be reconciled given their vagueness and inconsistencies.

5.  The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to the Philippines.  It found there was in fact no real risk of harm if the applicant returned to the Philippines, because the Board found that the people of the NPA or the Philippines government or military would not be interested in the historical involvement of the applicant with the NPA in the 1980’s and 1990’s. In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to the Philippines.  By its written decision dated 10 May 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

6.  On 21 May 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, he simply annexed copies of his recognizance paper, the agreement on administering and delivery of assistance for non-refoulement claimants, the Board’s decision together with its covering letter and the hearing bundle.

7.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 30 April 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [14] to [18] of the Form CALL-1 as follows:

“ 14. 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).

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

16. 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.’

17. The Board, for the reason set out in paragraph 9 above, rejected his evidence on the facts of his claim and had found that there was no evidence to show that the applicant will be subject to the risks as claimed if he returns to his country. There is no valid ground from the applicant to challenge the Board’s Decision. There is no reason for the Court to interfere with the Board’s Decision.

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

Appeal to this Court

8.  On 8 May 2024, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that he had no knowledge of Hong Kong law, that he was still a target of the NPA and the Philippines military, that internal relocation was not viable in light of the vast network of the NPA, and that he might be collateral damage between the continuous conflicts between the government and the NPA.  He also cited the Amnesty International Report 2017/18 available online, which did not appear to have been raised before the lower court.

9.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

10.  The applicant has lodged written submissions in which he repeated the grounds stated in his notice of appeal, including citing the Amnesty International Report 2017/18. He further cites an online source about extrajudicial killing of human rights activists in the Philippines in 2020, which was also not raised before the lower court. 

Discussion

11.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in 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].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

12.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because from consideration of the vague and inconsistent evidence, it found that the people of the NPA or the Philippines government or military would not be interested in the historical involvement of the applicant with the NPA that did not continue beyond the early 1990’s.  As such, it was not necessary for the Board to consider the issue of internal relocation.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  The applicant has failed to show any reasonably arguable ground for saying that the Board’s decision should be impugned due to public law errors.

13.  As to the applicant’s complaint of his lack of knowledge of Hong Kong law, it is well established that a non-refoulement claimant does not have absolute right to free legal representation at all stages of the proceedings: see Re Zafar Muazam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10]. The Applicant was legally represented in the completion of his non-refoulement claim form and during the vetting process of the Director, which contained the same factual claims relied upon by the applicant in the subsequent processes. We do not find the lack of legal knowledge or the non-availability of legal representation in the processes before the Board or the court to amount to any procedural unfairness.

14.  The applicant submits that there are unlawful killings by the Philippines government and the police of targeted individuals, civilians and human rights activists by citing two online sources in 2017/18 and 2020 in support.  These points do not appear to have been raised in the court below for consideration.  They remain only assertions without any explanation of the relevance to the applicant’s alleged circumstances with the NPA after surrendering to the Philippines military, as the online sources referred to killings pertaining to anti-drugs campaign, human rights activists and internal armed conflict with a group that pledged allegiance to the armed group of Islamic State.  In light of the irrelevance of the online sources cited by the applicant, we are of the view that there are no special circumstances that should incline this Court to consider these assertions which had not been raised before the Board, where possible, or the Judge below.

15.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

16.  The applicant’s appeal is accordingly dismissed.