RE DALOPE EDUARDO JR ALVAREZ

CACV 300/2022, [2024] HKCA 616

On Appeal From [2022] HKCFI 2246

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 300 OF 2022

(ON APPEAL FROM HCAL NO 39 OF 2019)

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J U D G M E N T

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

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  set out in the Form CALL-1 dated 22 July 2022, by which the Deputy Judge refused his application for leave to apply for judicial review ([2022] HKCFI 2246)  (“the Leave Decision”).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 27 December 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 27 February 2018 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

3.  This appeal was listed to be heard on 5 December 2022.  The applicant was directed to lodge two sets of skeleton argument on or before 7 November 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. The direction and the warning were communicated to the applicant by the Notice of Hearing dated 5 October 2022.  However, the applicant did not lodge any skeleton argument in support of his appeal.

4.  The requirement for lodging skeleton argument in an appeal is set out in Practice Direction 4.1.  Due compliance with such requirement on the part of litigants is important for the proper and effective functioning of our appeal process. Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants.  Non-compliance with such requirement can substantially impair the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Such failure on the part of a litigant is often the hallmark of ill-preparation of an appeal.  In view of the heavy demand on the Court’s time due to the large volume of appeals, unfocused oral presentation of materials at an oral hearing is not permitted, and this Court has taken a firm stance on the requirement to lodge skeleton argument.  Failure to comply with the requirement, despite being warned of the consequence of default, is treated as an abandonment of the right to an oral hearing.

5.  As the applicant failed to lodge a skeleton argument by the stipulated time, the applicant was deemed to have waived his right to have an oral hearing and elected to have his appeal disposed of on paper.  The hearing date was thus vacated on 10 November 2022.  We proceeded to consider this appeal on paper based on the available materials.

Background

6.  The applicant is a national of the Philippines.  He last arrived in Hong Kong on 13 June 2012 and was permitted to remain as a visitor till 27 June 2012.  He did not depart and overstayed.  Around three years later, on 20 June 2015, he was arrested by the police and was subsequently transferred to the Immigration Department for investigation.  By way of written signification dated 22 June 2015, he raised a non-refoulement claim on the basis that if refouled, he would be harmed or killed by the New People’s Army (“NPA”)  in the Philippines for refusing to join them.  Factual details of his claim were summarised by the Deputy Judge at [1] - [4] of the Leave Decision.

7.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].  Taking into account all relevant circumstances, the Director considered that the level of risk of harm against the applicant by the NPA upon refoulement was low and that his non-refoulement claim was not substantiated.

8.  The applicant then appealed against the Director’s Decision to the Board.  The applicant attended a hearing before the Board on 6 November 2018 and gave oral evidence.  The Board dismissed his appeal on 27 December 2018.  The Board found that the applicant’s failure to file his non-refoulement claim promptly was detrimental to his credibility.  Further, the Board found that there were numerous inconsistencies and contradictions in the applicant’s evidence which casted doubt on the reliability of his case.  Having assessed the evidence, the Board did not accept the applicant would face any real or substantial risk of harm upon refoulement.  In any event, the Board further held that state protection and internal relocation alternatives would be available to the applicant.  The Board concluded that the applicant failed to substantiate his claim on the applicable grounds and dismissed his appeal.

The Leave Decision

9.  On 7 January 2019, the applicant filed his Form 86 and supporting affirmation, applying for leave to apply for judicial review against the Board’s Decision.  In his Form 86, he advanced the following grounds of review, which were summarised by the Deputy Judge at [9] of the Leave Decision:

“9. On 7 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1)  Misdirection in law in that the Adjudicator misdirected himself on the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2)  Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3)  Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4)  Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in the Philippines;

(5)  Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in the Philippines and misdirected himself as to the extended meaning of state protection;

(6)  Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7)  Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8)  Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision; and

(9)  Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.”

10.  In his supporting affirmation, he repeated the procedural history of his case.  He complained that the hearing bundle for his appeal was not provided to him earlier or with any interpretation as the majority of the documents were in English which he was not familiar with due to his limited skills in English and being unrepresented and as such, he was given insufficient time to prepare for his appeal hearing before the Board.  He also complained that the Board had significantly relied on sources of news which were not officially recognised or which were simply hearsay or outdated which resulted in the Board making groundless speculations that it would be safe for him to return to his home country.

11.  On 26 May 2022, the applicant attended an oral hearing before the Deputy Judge and a Tagalog interpreter was present to provide language assistance.

12.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out in detail at [10] - [16] of the Leave Decision:

“10. These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision or misdirected itself in law, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or how did the Adjudicator apply the incorrect standard of proof in the decision, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant that I do not find any of them reasonably arguable 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] HKCA 246; 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. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

13. Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, given the fact that the Applicant is not entirely ignorant of the English language and that most of the documents including his NCF, record of his screening interview and the Director’s decision should be well familiar to him as they had earlier all been made available to him when he still had legal representation from DLS, whilst his NCF was completed on his own instructions with legal assistance from DLS, and that at his oral hearing he never raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board or that this ground is reasonably arguable for his intended challenge either.

14. Furthermore, the fact is that it has been correctly established by both the Director and the Board in their respective decision 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 where the NPA normally does not operate, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15. 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.

16.  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.”

The Appeal

13.  On 5 August 2022, the applicant filed a Notice of Appeal to appeal against the Leave Decision.  In his Notice of Appeal, the applicant put forward the following grounds of appeal:

(1)  the Director, the Board and the Court failed to take “such argument into account”;

(2)  the Director failed to appreciate or give weight to the presence of state acquiescence;

(3)  the Board failed to make sufficient inquiries before finalising the determination;

(4)  the Board failed to give sufficient chance to the applicant to arrange relevant evidence; and

(4)  the Director unfairly referred to the relevant Country of Origin Information which suited his pre-conceived conclusion.

14.  Contrary to the directions of the Registrar of Civil Appeals dated 21 September 2022, the applicant failed to lodge any written submissions in support of the present appeal.

Discussion

15.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.  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.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A.

17.  At the outset, nowhere in his Notice of Appeal did the applicant identify with specific particulars any error made by the Deputy Judge in the Leave Decision.  His complaints are mainly directed at the Board and the Director.  His complaints are also all general and vague without specific particulars or evidence in support and do not constitute proper grounds of appeal.  On this basis alone, his appeal must fail.

18.  In any event, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, Country of Origin Information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].  As correctly noted by the Deputy Judge, there was no error of law or irrationality or procedural unfairness in the proceedings before the Board.  We see no basis to interfere with the Leave Decision.

19.  For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.