RE MADRIAGA NENITA MAGAPAN

CACV 135/2023, [2023] HKCA 892

On Appeal From [2023] HKCFI 503

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 135 OF 2023

(ON APPEAL FROM HCAL NO. 597 OF 2019)

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J U D G M E N T

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Hon Anthony Chan J (giving the Judgment of the Court) :

I.  The appeal

1.  This is an appeal against the decision (the ‘Decision’) of Deputy High Court Judge Bruno Chan of 19 April 2023 refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (the ‘Board’) dated 20 February 2019. The Board dismissed the applicant’s appeal against the decision of the Director of Immigration (the ‘Director’) dated 11 July 2018 which rejected her claim for non‑refoulement protection under all applicable grounds.

II.  Background

2.  The applicant is a national of the Philippines. The applicant was working as a domestic helper in Hong Kong between 1990 and 2006. She last entered Hong Kong in May 2005. After the completion of her employment contract she overstayed in Hong Kong since August 2006. In November 2016, the applicant was arrested for overstaying. She raised a non - refoulement claim on 3 July 2017 on the basis that if she returned to the Philipines she would be harmed or killed by the New People Army (“NPA”).

3.  The background facts had been summarised by the Judge at [2]-[6] of the Decision.

III.  The Director’s Decision

4.  The Director’s decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as her other statutory and convention rights against torture and persecution.

IV.  The Board’s Decision

5.  After a hearing held on 12 November 2018, the Board dismissed the applicant’s appeal (the ‘Board’s Decision’).

6.  According to the applicant, it was in 1993 that she was threatened by the NPA. However, the Board found that between 1993 to 2006 the applicant returned to the Philippines once every two years, yet nothing eventful happened to her on any of these occasions. Nowhere in the applicant’s evidence suggested that the NPA would kill her if she quit the NPA. The applicant was speculative as to why her husband was killed. There was no basis of fear that if the applicant was to return to the Philippines she would be subjected to torture. The applicant’s non-refoulement claims failed on all applicable grounds.

V.  Decision of the Judge

7.  The applicant filed a Form 86 and a supporting affidavit on 4 March 2019. The supporting affidavit contained six grounds for judicial review including that the Board had no basis to conclude that the applicant would not be subjected to risk of harm, that there were procedural improprieties including failure to conduct sufficient inquiry, failure to conduct sufficient due diligence, failure to give sufficient reasons for the assessment of BOR 3 risk and failure to consider the applicant’s fear properly. The applicant also complained that the Board failed to take into account psychological strain on her.

8.  The Judge held that all of the applicant’s intended grounds of appeal were broad and vague assertions without specifics as to how they would apply to her case or how the Board erred in its decision.

9.  The Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review and accordingly refused her leave application.

VI.  Grounds of appeal

10.  In the notice of appeal filed on 30 May 2023, the applicant stated the following :

1)  The Board and the Director failed to make sufficient inquiries into country of origin information;

2)  The Board and the Director failed to take into account relevant considerations or took into account irrelevant considerations;

3)  The Board and the Director failed to have regard to the fact that the applicant’s life was so dangerous and threatened;

4)  The Board and the Director failed to have regard to the fact that the applicant is placed in severe mental distress as a result of being targeted. The applicant has no protection from the Philippines authority;

5)  The applicant’s claim is real.

11.  In the written submissions lodged on 12 June 2023, the applicant stated the following :

1)  The Judge was wrong to accept the decision of the Board when

(1)  The Board and the Director failed to take into account relevant considerations or took into account irrelevant considerations;

(2)  The Board failed to follow high standard of fairness in their assessment. The evidence showed that the Philippines authorities would not provide protection to the applicant;

2)  The applicant’s claim is based on a true story of her life;

3)  The decision makers did not observe the applicant’s fear properly;

4)  The Judge did not focus on the applicant’s fear.

12.  The applicant made no further submission at the hearing of this appeal.

VII.  Our view

13.  In our view, the applicant’s notice of appeal and written submissions consist of bare allegations without particulars or specifics. These are not proper grounds of appeal. The applicant has not identified any valid ground for judicial review or any error of law on the part of the Judge in assessing her application.

14.  We will repeat the approach of this Court in dealing with cases of this nature :

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 the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information 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 their decisions.

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. In the determination for an appeal, the Court of Appeal focuses on the decision of the Judge and 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 a refusal of leave to apply for judicial review in non‑refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant. If no viable ground is put forward to reverse the Judge, the appeal should be dismissed. It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

15.  In our view, the applicant’s appeal is devoid of any merits. We see no basis to disturb the Judge’s decision. Accordingly, the appeal is dismissed.