RE IRANGAN ARIEL SUABILLO

CACV 549/2021

[2022] HKCA 336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 549 OF 2021

(ON APPEAL FROM HCAL 2246 OF 2018)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL‑1 dated 2 December 2021, by which the Deputy Judge refused the applicant’s application for leave to apply for judicial review (“the Leave Decision”) [2021] HKCFI 3452.

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 11 October 2018 (“the Board’s Decision”), which dismissed the appeal against the decisions of the Director of Immigration (“the Director”) dated 26 January 2015 and 18 November 2016 (collectively referred as “the Director’s Decisions”) rejecting the applicant’s non-refoulement claim.

Background

3.  The applicant is a national of the Philippines. He last entered Hong Kong as a visitor on 6 May 2007 and was permitted to remain until 12 June 2007. He did not leave and overstayed since 13 June 2007. He was arrested by the police on 21 April 2009 and referred to the Immigration Department on the same day. On 22 April 2019, he raised a torture claim which was taken to be and assessed as a non-refoulement claim by the Director under the Unified Screening Mechanism. The basis of his claim was that he would be subjected to ill-treatment by the Espinosa family, especially the ex-vice mayor, because of an alleged debt problem. Factual details of the applicants’ claim were summarised by the Deputy Judge at [4] -[5] of the Leave Decision.

4.  By a Notice of Decision dated 26 January 2015, the Director rejected the applicant’s non-refoulement claim. His decision covered all applicable grounds including torture risk[1], BOR3 risk[2] and persecution risk[3]. Taking into account all relevant circumstances, the Director assessed the risk of harm to the applicant from the Espinosa family upon his return to the Philippines as low. The Director considered that state protection would be available to the applicant and on the basis of Country of Origin Information (“COI”), internal relocation alternatives would be available and reasonable.

5.  By a Notice of Further Decision dated 18 November 2016, the Director further rejected the applicant’s non-refoulement claim on the basis of BOR2 risk[4].

6.  The applicant appealed against the Director’s Decisions to the Board and attended an oral hearing before the Board 9 December 2016. The Board dismissed his appeal on 11 October 2018. Having considered and assessed the evidence, the Board considered that the basis of his claim was not credible and he failed to demonstrate that there was a genuine risk of harm against the applicant by the Espinosa family upon his return to the Philippines. The Board also considered that state protection and internal relocation alternatives would be available to the applicant upon his return to the Philippines. Accordingly, the applicant failed to substantiate his claim and his appeal was dismissed by the Board.

The Leave Decision

7.  On 16 October 2018, the applicant filed a Form 86 and a supporting affidavit applying for leave to apply for judicial review of the Director’s Decision and Board’s Decision. No ground of review was provided in his Form 86 or supporting affidavit.

8.  After considering his application on paper, by the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review for the following reasons:

“12. 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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

14. 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.’

15. He has submitted no valid ground to assist his application.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18. I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.”

The Appeal

9.  On 6 December 2021, the applicant filed a Notice of Appeal against the Leave Decision. In his Notice of Appeal, the applicant stated:

“… the grounds of this appeal are that 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.”

10.  Pursuant to the directions made by the Registrar of Civil Appeals on 21 December 2021, the applicant lodged his written submissions on 30 December 2021. In his written submissions, the applicant only referred to ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKRLD 289 for the general proposition that high standards of fairness are required in the determination of a torture claim. Yet, the applicant did not show with specific particulars how this applies to his case or how the Deputy Judge had erred in the Leave Decision.

11.  We heard the appeal on 21 February 2022. A Tagalog interpreter was present to provide language assistance. During the hearing, the applicant confirmed that he had nothing further to add to his written materials.

Discussion

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

13.  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. It is not the role of the Court of Appeal to examine the 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.

14.  In light of the above, it is thus incumbent on the applicant to point out the errors in the Leave Decision with sufficient particulars and specifics.

15.  Nowhere in his Notice of Appeal or written submissions did the applicant identify any error committed by the Deputy Judge. The matters raised by the applicant are all general and bare allegations unsupported by specific particulars or evidence. The applicant also failed to show how the legal proposition cited in his written submissions is relevant to his case. Clearly, the matters raised by the applicant do not constitute viable grounds of appeal and the appeal must fail on this basis alone.

16.  Moreover, the matters raised in his Notice of Appeal and written submissions are all new matters not raised before the Deputy Judge. It is well established that this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14(4)]; Re Gurpreet Singh [2021] HKCA 1740 at [15(3)]. Accordingly, we refuse to entertain his new arguments.

17.  In any event, his arguments are devoid of merit. As repeatedly emphasised by this Court, assessment of evidence, COI materials 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: Nupur Mst v Director of Immigration, supra,at [14(1)]; Re Md Shohel Sheak [2018] HKCA 714 at [13(a)]; and Re Limbu Birkhaman [2019] HKCA 50 at [11(1)].

18.  Having considered the materials before us, we have reviewed both the Board’s Decision and the Leave Decision and the reasons they gave for their decisions. We see no error of law, or mistake of fact, or procedural impropriety in reaching those decisions. The applicant had opportunities to plead and present his case before the Board and the Deputy Judge. The Board had weighed the evidence and considered his claim in detail. The Deputy Judge had also considered his application for leave to apply for judicial review in detail. In the absence of any error committed by the Deputy Judge, there is no basis to disturb the Leave Decision.

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