RE LORENZO JONALYN IBUS

CACV 410/2023, [2024] HKCA 543

On Appeal From [2023] HKCFI 3100

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 410 OF 2023

(ON APPEAL FROM HCAL NO 1539 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 the applicant’s appeal against the order of Deputy High Court Judge To (“the Judge”)  dated 30 November 2023 ([2023] HKCFI 3100)  (“the Leave Decision”)  refusing to grant her leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 24 May 2019, whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 8 November 2017.

2.  On 11 December 2023, the applicant indicated her consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

BACKGROUND

3.  The applicant is a national of the Philippines.  She worked as a foreign domestic helper in Hong Kong and overstayed when her contract of employment was terminated.  She surrendered to the authorities on 12 April 2017.  On 31 July 2017, she raised a non-refoulement claim on the basis that she would be harmed or killed by her husband as she gave birth to two kids with a Nepalese man in Hong Kong.  Details of the applicant’s claim were summarised by the Judge at [5] - [11] of the Leave Decision.

4.  By a Notice of Decision dated 8 November 2017 (“the Director’s Decision”), the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.  The applicant appealed the Director’s Decision to the Board.  On 24 May 2019, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons were summarised by the Judge at [12] - [18] of the Leave Decision:

“12. Except for the issues of whether the Applicant was genuinely in fear of her safety and on availability of state protection, the Board assessed the Applicant’s claim primarily on the basis of her case as she asserted.

13. The Board noted that the Applicant became an over-stayer since 23 October 2011 and claims to have been threatened by her husband since 2012. However, she chose not to seek protection until 2017. The Board considered her five years’ delay in seeking protection suggested that her claimed fear for her safety was not genuinely held.

14. The Board noted the Applicant’s complaint about non-availability of state protection because of corruption is supported by country of origin information (‘COI’). However, it also found conflicting COI suggesting on-going reforms and that the government has taken practical steps to improve police effectiveness and to monitor their conduct. But no conclusion one way or the other seems to have been made by the Board.

15. The Board found in all these years the husband had done nothing to the Applicant or her mother in the Philippines. It found his threats were merely empty threats which the husband had no intention to execute. The risk of harm posed by the husband was low. It also found the injuries suffered by the Applicant was not serious.

16. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the USM. The Board found the Applicant is not entitled to protection under BOR 3 Risk ground because the risk of harm posed by the husband was low and the feared ill-treatment did not attain a minimum level of severity. It also found there is nothing in her case that supports a claim under BOR 2 Risk ground. It found the Applicant’s feared ill-treatment from her husband arose out of a domestic dispute and fell outside the meaning of ‘torture’ under Section 37U(1)  of the Immigration Ordinance. She is therefore not entitled to protection under the Torture Risk ground. For the same reason, the feared ill-treatment was not on account of any of the reasons protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol, namely race, religion, nationality, membership of a particular social group or political opinion. Her claim under this head falls outside the protection of Persecution Risk ground.

17. The Board rejected the Applicant’s claim that her husband could with his friends locate her anywhere in the Philippines as there is no evidence that with his background he is resourceful enough to do so. On the contrary, it found with her age and experience, the Applicant should have no difficulty to work and live in any place in the Philippines.

18.  For all these reasons, the Board found the Applicant’s claim fails on all applicable grounds and rejected her appeal.”

THE JUDGE’S DECISION

6.  On 5 June 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.[5]  No ground of intended review was given by the applicant in her Form 86.  In her supporting affirmation, she alleged that her dangerous situation was disregarded by the decision maker.

7.  As the applicant did not request for an oral hearing, the Judge considered her application on paper.  On 30 November 2023, the Judge gave his decision refusing to grant the applicant leave to apply for judicial review for the following reasons:

“21. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to Torture Risk, Persecution Risk, BOR 2 Risk and BOR 3 Risk grounds; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

22. Except on the issues of whether the Applicant was in genuine fear of her safety and feasibility of internal relocation (which have no significant impact on the Board’s Decision), the Board assessed the Applicant’s claim primarily on the basis of her case as she asserted. It was on that basis that the Board found her feared risk of ill-treatment is low or unlikely to materialise; and even if it does, she could safely avoid the risks by internal relocation. Most importantly, it found as a matter of law she is not entitled to non-refoulement protection under any of the four applicable grounds. Accordingly, the Board came to the conclusion that the Applicant’s claim failed. These are finding of facts and of the law. Insofar as it is a finding of fact, the Board assessed the Applicant’s claim primarily on the factual case as she asserted. The Applicant could have no reason to complain about the Board’s finding of these primary facts. It was on that basis that the Board further found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds. This is a mixed finding of fact and of law. Insofar as it is a finding of fact, it is 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. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

23.  For the above reasons, leave is granted to amend the Form 86 by substituting the Board as the proposed respondent and its Decision as the decision in respect of which relief is sought; and the application for leave to apply for judicial review as amended is refused.”

THIS APPEAL

8.  In her Notice of Appeal filed on 11 December 2023, she only stated:

“I WANT TO APPEAL BECAUSE I DOT WANT TO GO HOME YET CAUSE MY LIFE IS STILL IN DANGER SITUATION.” (sic)

9.  Pursuant to the directions of the Registrar of Civil Appeals dated 11 December 2023, the applicant lodged her written submissions on 27 December 2023.  In those submissions, she only repeated the factual basis and procedural history of her non-refoulement claim.  She further alleged that the Judge did not consider her arguments at all and that there was no oral hearing before the Judge.

DISCUSSION

10.  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’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

11.  Further, the assessment of evidence, COI, 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: Re Kartini [2019] HKCA 1022.

12.  In our view, the applicant’s appeal is a non-starter.  At the outset, as the applicant did not request for any oral hearing before the Judge, it was open to the Judge to consider and determine her application for leave to apply for judicial review on paper.  Further, the applicant did not raise any substantive argument in her Form 86 or supporting affirmation dated 5 June 2019.  Her complaints have no basis.  In any event, her allegations are bare, vague and general without specific particulars or evidence in support and do not constitute proper grounds of appeal.

13.  More importantly, the applicant fails to identify or show with specific particulars any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Leave Decision.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  None of her allegations are proper grounds of appeal.  Her appeal must fail on this ground alone.  In any event, we have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.  We see no basis to disturb the Leave Decision.

14.  The applicant’s appeal against the Leave Decision has no merit and is dismissed.