RE PADACO ROSEMARIE ODLOS

CACV 342/2019

[2019] HKCA 1319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 342 OF 2019

(ON APPEAL FROM HCAL 1612 OF 2018)

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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 appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL‑1 dated 16 July 2019 refusing her leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 1774.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 9 August 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 25 August 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.  By a letter dated 26 July 2019, the applicant gave consent to the appeal being heard by a two-member court.

A.   Background

3.  The applicant is a national of the Philippines.  She entered Hong Kong as a visitor on 24 February 2011 and was permitted to stay until 17 March 2011.  She did not leave and was arrested on 18 April 2011.  She made a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 20 April 2011.  Her torture claim was rejected on 24 November 2011.  On 7 March 2014, she lodged a non-refoulement claim on all the other applicable grounds.

4.  The details of the applicant’s claim and her personal background were set out in paragraph 8 of the Director’s Decision, and paragraph 5 of the Board’s Decision.

5.  Briefly stated, the applicant claimed that if she was returned to the Philippines, she would be harmed or killed by a James Dondogan (“James”), the driver who caused her nephew’s death in a car accident.  On 22 December 2010, the applicant took her nephew to her brother’s wedding.  Her brother Gerome Padaco (“Gerome”) was the father of her nephew.  While they were waiting for the bus to go to the wedding, a car ran onto them and killed her nephew.  She later found out the driver was James whose father and mother were powerful individuals in their home village. After her nephew’s death, James visited her a few times and offered to pay her to keep her from disclosing his identify.  She refused and since then she had been receiving threats from James.  Meanwhile, James’ mother also came to bribe and threaten the applicant.  She was afraid that she would be killed by James’ family if she told Gerome who killed his son because Gerome would take revenge.  Eventually, she fled her home country.

B.   The Director’s Decision and the Board’s Decision

6.  The Director assessed the BOR 3 risk^[1], the persecution risk^[2], and the BOR 2 risk^[3] in the Director’s Decision.  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

7.  The applicant appealed the Director’s Decision to the Board.  The appeal was heard on 9 May 2018, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed her appeal.

8.  The Board found that the applicant lacked credibility.  There were contradictions in her versions of key events.  For example, the applicant provided conflicting evidence as to the period she stayed at her uncle’s home to avoid being found by James.  Also, she once mentioned that James had inquired her whereabouts with her friend but her friend and James did not know each other.  Further, she also gave contradictory evidence about police’s investigation into the alleged car accident.  Meanwhile, it was revealed from her immigration history that she had given false information to governmental authorities in Hong Kong.  Overall, the Board accepted that there might be a car accident leading to her nephew’s death but it refused to accept the consequence as alleged by the applicant (paragraphs 58 - 73 of the Board’s Decision).  Thus, the Board dismissed her appeal.

C.   The Deputy Judge’s Decision

9.  The applicant filed a Form 86 on 13 August 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  The grounds of review stated in her supporting affirmation filed on the same date were summarized by the Deputy Judge at paragraph 10 of the Deputy Judge’s Decision as follows:

“10. In her affirmation in support of her application dated 13 August 2018, the applicant relied upon the following grounds:

(1) the Director’s Decision and the Board’s Decision are wrong;

(2) the Adjudicator had not considered her objections to the Director’s Decision;

(3) she did not obtain assistance on the language as English is not her mother language;

(4) she was not given any legal assistance for this application;

(5) the Director was biased when considering the Country of Origin Information; and

(6) the Board’s Decision was not translated to her.”

10.  The Deputy Judge heard the applicant’s leave application on 21 February 2019.  During the hearing, an interpreter was arranged for the applicant.  After the hearing, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out the following reasons in paragraphs 11 - 18 of the Deputy Judge’s Decision:

“The Director’s Decision

11. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigations in the matter. The Board had considered his appeal and made its Decision.

12. Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

‘45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.’

13. Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

14. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.

The Board’s Decision

15. The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She understands English and she understood the Board’s Decision. She considered that she had had a fair hearing before the Board.

16. It is obvious that as [sic] the Board rejected her evidence in support of her claim. Without the factual foundation, it is impossible for her claim to succeed.

17. All the grounds above are irrelevant to the finding of the facts by the Board. They are also inconsistent with what she said in court. The applicant does not have the absolute right to free legal representation at every stage of the proceedings as held by the Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22.

18. The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.”

D.  Grounds for appeal

11.  The applicant filed the Notice of Appeal dated 26 July 2019 to appeal the Deputy Judge’s Decision.  She listed out eight grounds of appeal with two exhibits attached – the Deputy Judge’s order to dismiss her leave to apply for judicial review and the Deputy Judge’s Decision.

12.  Under the eight grounds of appeal of the Notice of Appeal, the applicant effectively argued that there was procedural unfairness for the hearing before the Deputy Judge as he failed to acknowledge the significance of her lack of language and legal assistance.  This is so as (a) she was not legally represented before the Deputy Judge; (b) she did not understand the Board’s Decision and the Director’s Decision; and (c) she did not have the interpretation services.  The above prejudice is further underlined by the fact that the Deputy Judge’s Decision was not read to her and the Deputy Judge failed to elaborate his reasons in any event.

13.  Pursuant to Master Au-Yeung’s directions dated 19 August 2019, the applicant filed her skeleton submissions on 24 October 2019.  In that, she repeated her grounds on lack of legal and language assistance.  She argued that she did not have legal representation before the Board.  Although her friend explained the Board’s Decision to her, she still failed to understand the legal jargons.  She also submitted that the Deputy Judge failed to exercise diligent duty of care towards her, a non-litigant who does not understand English.  She also contended that her lack of legal and language assistance had also made it difficult for her to properly and fully understand the Deputy Judge’s Decision, and therefore she was prejudiced in pointing out all the wrongs or errors that might have been committed by the Deputy Judge.

14.  At this hearing, the applicant confirmed that she had nothing further to add to what had already been set out in the Notice of Appeal and the written submissions in support of this appeal.

E.   Discussion

15.  The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

16.  First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

17.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

18.  Third, 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).

19.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in the Deputy Judge’s Decision.

20.  Bearing these principles in mind, it is clear that the grounds of appeal have no merit at all.

21.  In relation to the complaint about any lack of language assistance before the Deputy Judge, it has no substance at all, as the applicant was assisted by an interpreter at the hearing.

22.  Further, in the present case, all the court documents, including the affirmation filed in support of the leave application, the notice of appeal, and the written submission in support of this appeal, were written in English.  In the premises, it is clear that either the applicant is herself conversant with the English language or she has access to language assistance of her own if she finds it necessary.  There is therefore nothing in the complaint that the Deputy Judge’s Decision was not read to her.

23.  In relation to the complaint of lack of legal assistance, it is also devoid of any merit.

24.  We note that in the applicant’s supporting affirmation for the leave application before the Deputy Judge, she was able to identify the alleged errors said to be committed by the Director and the Board.  In addition, the applicant was able to identify the alleged errors by the Deputy Judge said to be made in the Deputy Judge’s Decisions and provided written submissions on the alleged errors.  Therefore, there is nothing to suggest that the applicant suffered any prejudice from the alleged lack of legal assistance.  In any event, this court has emphasised repeatedly that as a matter of law, a non‑refoulement claimant is not entitled to free legal representation at all stages of the process: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37.  In this respect, she was provided with legal representation under the Duty Lawyer Scheme in relation to her claim before the Director.  There is therefore no merit in this ground.

25.  As to the allegation that the Deputy Judge intentionally shortened his reasons, this is misconceived.  It is clear from the Deputy Judge’s Decision that he has provided sufficiently detailed reasons for his conclusion (see paragraphs 11 - 18 of the Deputy Judge’s Decision).  This ground is also entirely unmeritorious.

26.  Finally and in any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision, and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  In this respect, it is worthy to note that interpreter services were in fact provided to the applicant at the hearings at every stage.  She was present before the Board and the Deputy Judge with an interpreter.  Such service was also available at the time when the applicant was assisted by her Duty Lawyer.  See also the observations at paragraph 22 above.

27.  For all the above reasons, there is no basis to disturb the Deputy Judge’s Decision and we reject all the grounds of appeal.

F.   Disposition

28.  The applicant’s appeal has no merits at all. Accordingly, we dismiss the appeal.