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CACV 47/2022
[2022] HKCA 635
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 47 OF 2022
(ON APPEAL FROM HCAL 475 OF 2019)
________________________
| RE: |
ALAMAN JEROME VILLA |
Applicant |
________________________
Before: Hon Au JA and Lisa Wong J in Court
Date of Hearing: 26 April 2022
Date of Judgment: 13 May 2022
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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 by the applicant against the decision of Deputy High Court Judge P Li (“the Deputy Judge”) set out in the Form CALL-1 dated 18 January 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 139).
2. The intended judicial review is to challenge the decisions of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 8 December 2016 and 14 February 2019 (collectively referred as “the Board’s Decisions”), dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 30 January 2015 and 29 March 2017 (collective 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 arrived in Hong Kong on 1 October 2009 and was allowed to stay in Hong Kong until 15 October 2009. He then overstayed and was arrested by the police on 30 October 2009 and lodged a non-refoulement claim on 1 November 2009 on the basis that he would be harmed or killed by the members of a drug syndicate. Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] - [9] of the Leave Decision.
4. By a Notice of Decision dated 30 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 considered that his non-refoulement claim was unsubstantiated.
5. By a Notice of Further Decision dated 29 March 2017, the Director further rejected the applicant’s non-refoulement claim on the basis of BOR2 risk[4].
6. On 11 February 2015, the applicant appealed against the Director’s Decision dated 30 January 2015 to the Board. The applicant attended the hearing before the Board on 19 October 2015 but elected not to give evidence. The Board dismissed his appeal on 8 December 2016. The Board found that the applicant did not raise any claim when he was in Macau or China or when he first entered Hong Kong on 18 August 2009 and only raised a claim after he was arrested for overstaying. Such conduct was inconsistent with his alleged fear for his life. Having considered and assessed the evidence, the Board concluded that the applicant failed to substantiate his claim on all applicable grounds including torture risk, BOR3 risk, and persecution risk. The Board further found that state protection and reasonable internal relocation options were available to the applicant. Accordingly, his appeal was dismissed. On 14 February 2019, the Board further dismissed his application for late filing of his Notice of Appeal in relation to BOR2 risk and in any event, further considered that the applicant’s intended appeal had no prospect of success.
The Leave Decision
7. On 19 February 2019, the applicant filed a Form 86 and a supporting affidavit applying for leave to apply for judicial review of the Board’s Decisions.[5] He did not provide any ground of review in his Form 86 or his supporting affidavit. The applicant attended a hearing before the Deputy Judge on 1 November 2021 and a Tagalog interpreter was present to provide language assistance.
8. By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review. The Deputy Judge held that:
“17. In judicial review, the finding of facts is the duty of the TCAB. In general, this court would not interfere. This court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational.
18. The applicant had delayed the claim until after his arrest for overstaying. There was no explanation whatsoever. This substantially damage the credibility of his claim. The adjudicator was right to refuse his late filing of the notice of appeal in relation to the BOR 2 decision of the Director. I agree with the reasons summarised in paragraphs 12-13 above. They fully support the TCAB decisions.
19. I am satisfied that there is no error of law nor is there any procedural irregularity. It is rational.
Conclusion
20. The Applicant’s claim is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.”
The Appeal
9. On 24 January 2022, the applicant filed a Notice of Appeal against the Leave Decision. However, no ground was given in support of his present appeal.
10. Pursuant to the directions this Court dated 4 March 2022, the applicant lodged his written submissions on 28 March 2022. In his written submissions, he repeated the factual background of his non-refoulement claim. He further complained that the Director “made an absolute conclusion based on their research [and] not with the circumstantial evidence” and that he needed not provide written evidence to prove that there was a threat to his life when he felt his life was endangered by his enemy.
11. We heard the appeal on 26 April 2022. A Tagalog interpreter was present to provide language assistance. At the hearing, the applicant confirmed that he had nothing further to add to his written materials.
Discussion
12. 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].
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’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.
14. Nowhere in his Notice of Appeal or written submissions did the applicant identify any error in the Leave Decision. It is well-established that in the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we 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: see Nupur Mst v Director of Immigration, supra, at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. As there is no viable ground of appeal, the appeal ought to be dismissed on this basis alone.
15. In any event, the applicant’s general and bare assertions on his fear if refouled to his home country do not constitute valid grounds of appeal. As repeatedly emphasised by the Court, assessment of evidence, Country of Origin 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 [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].
16. For the above reasons, the applicant’s appeal has no merit. Accordingly, we dismiss the appeal.
| (Thomas Au) |
(Lisa Wong) |
| Justice of Appeal |
Judge of the Court
of First Instance |
The applicant acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[4] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] As noted at [14] of the Leave Decision, in his Form 86, the applicant sought leave to challenge against a Board’s decision dated 15 January 2019. However, there was no such decision. Instead, the Board’s decisions were dated 8 December 2016 and 14 February 2019. However, the precise dates of the Board’s decisions are immaterial.
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