NOLASCO MARIDEL SAMSON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 410/2024, [2025] HKCA 80

On Appeal From [2024] HKCFI 2570

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 410 OF 2024

(ON APPEAL FROM HCAL NO 1958 OF 2019)

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J U D G M E N T

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

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge Reuden Lai (“the Judge”) dated 24 September 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 3 June 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 9 October 2018.

BACKGROUND

2.  The Applicant is a national of the Philippines. She last arrived in Hong Kong as a visitor on 24 December 2015, and had overstayed since 8 January 2016. On 15 January 2016, she surrendered herself to the Immigration Department and lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her creditor (Virgil Buenaventura) for being unable to repay a loan. Details of the Applicant’s claim have been summarised by the Judge at §§5-10 of the CALL-1 Form.

3.  By a Notice of Decision dated 9 October 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4].

4.  The Applicant appealed the Director’s Decision to the Board. On 3 June 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§21-25 of the CALL-1 Form, as follows:

“[21] After considering the Applicant’s claims including her written evidence, the record of her interview, her notice of appeal and her oral evidence given at hearing before the Board, the Board formed the view that the Applicant was not a witness of truth and that her evidence was incredible.

[22] In §§44-47 of the Board’s Decision, the Board set out its analysis on the Applicant’s evidence leading to its aforesaid findings. The Board did not accept that the Applicant borrowed money from a creditor in the Philippines and still owed this money. The Board did not accept that if the Applicant returned to the Philippines, she would face any harm from her alleged creditor because of any debt she owed to him.

[23] At the hearing, the Applicant told the Board that her father and her brothers were shot dead in 2002 and 2008, respectively. She also claimed that people returning to the Philippines after working overseas had been held against their will in the past. She further claimed that her neighbour had been killed. The Board noted that the above were serious allegations but none of the above was mentioned in her case to the Director. The Board found those to be incredible and further undermined her credibility.

[24] The Applicant mentioned that she was ashamed of her failed marriage. The Board found that this personal concern was incapable of giving rise to any claim for non-refoulement protection.

[25] Because the Board held that the Applicant’s claim was wholly incredible, she failed to establish any risk of harm to her upon her return. As the Board did not accept the fundamental basis of the Applicant’s claim that she faced any form of harm upon her return to the Philippines, the Board did not see the necessity to consider the availability of state protection or internal relocation.”

THE JUDGE’S DECISION

5.  On 11 July 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86. In her supporting affidavit of the same date, the Applicant merely stated that she could not go back to the Philippines because her life would be in danger there.

6.  On 24 September 2024, the Judge refused to grant leave to the Applicant to apply for judicial review, for the following reasons:

“[33] No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affidavit. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the [Director’s] Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

[34] Having rigorously examined the Board’s Decision and the [Director’s] Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the [United Screening Mechanism (‘USM’)]; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness.

[35] The Board found that the Applicant’s claims not credible for reasons set out in §§44-47 of the Board’s Decision. The Board did not accept that the Applicant had borrowed money from anyone in the Philippines and still owed this money. As such, the Applicant would not face any form of harm upon her returning to the Philippines.

[36] It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Board’s Decision is without fault. The proposed judicial review is not reasonably arguable.

Conclusion

[37] In the premise and having considered the Board’s Decision and the [Director’s] Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.”

THIS APPEAL

7.  In her Notice of Appeal filed on 30 September 2024, the Applicant stated the following grounds of appeal:

“[T]he Applicant will face hardship if she is to return back to [her] 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.” [sic]

8.  The Applicant belatedly lodged her written submissions on 10 January 2025 in support of her appeal contrary to the directions given by the Registrar of Civil Appeals on 4 December 2024. Accordingly, she is deemed to have waived the right to have an oral hearing of her appeal and elected to have her appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

DISCUSSION

9.  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 of Appeal’s role is not to examine the Board or Director’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst, at §14(6)).

10.  Further, the assessment of evidence, country of origin information, 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. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.  In the Applicant’s written submissions, she sets out some general principles relating to assessment of non-refoulement claims, but fails to explain how those principles are applicable to her case. The Applicant also makes some general allegations against the Board’s decision, including (i) the Adjudicator failed to scrutinise the Director’s Decision, but simply tried to see whether he could “find fault with the decision of the Immigration Officer”, and (ii) the Board failed to consider the country conditions of the Applicant’s country of origin. The first complaint has no validity since the appeal before the Board was by way of a re-hearing, while the second complaint is irrelevant because the Board rejected the Applicant’s non-refoulement claim on the basis that her claim was wholly incredible, and thus it was not necessary to consider the availability of state protection or internal relocation.

12.  The Applicant has failed to identify or show 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 Order. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

13.  The Applicant’s appeal against the Order has no merit, and is dismissed.