RE DELA CRUZ EILEEN TOLENTINO

CACV 245/2020

[2020] HKCA 1071

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 245 OF 2020

(ON APPEAL FROM HCAL NO 1579 OF 2018)

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J U D G M E N T

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Hon Toh J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Campbell-Moffat J (“the Judge”) on 23 June 2020 in HCAL 1579/2018 refusing leave to the applicant to apply for judicial review. By that decision, the Judge refused her application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 27 July 2018 in which the Board confirmed the decision of the Director of Immigration (“the Director”) dated 24 January 2018.

Background

2.  The applicant is a national of Philippines. She came to Hong Kong legally as a foreign domestic helper on numerous occasions between 2009 and 2014.  Her last contract of employment was terminated on 27 November 2014 and thereafter she overstayed.  She surrendered to the police on 27 January 2015 and was convicted of breach of condition of stay on 31 January 2015 and was given two weeks’ imprisonment suspended for one year.  The applicant submitted a non‑refoulement claim by way of written representation on 2 February 2015 on the basis that if she were to return to Philippines, she would be harmed or even killed by her creditor as she failed to repay her loan.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1333. 

3.  By the Notice of Decision dated 24 January 2018, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

4.  The applicant appealed to the Torture Claims Appeal Board (“the Board”). After an oral hearing on 11 May 2018, the Board dismissed the appeal on 27 July 2018.  In its decision, the Board was convinced that the evidence of the applicant was truthful and consistent and accepted her version of events that she borrowed a loan to pay for her father’s medical treatment and hospitalization in or about 2009.  The Board also accepted that she was unable to repay her loan and was assaulted by her creditor before she fled to Hong Kong.  Yet, on the basis of the evidence, the dispute the applicant had with her creditor was private in nature without state or official instigation and the ill-treatment did not reach a minimum level of severity that amounted to torture.  Further, with the passage of time, the risk of harm upon her return was considered to be remote.  In any event, internal relocation is a viable option and would further eliminate the risk.  For the aforesaid reasons, the appeal was rejected on all applicable grounds.

The Judge’s decision

5.  On 9 August 2018, the applicant filed her Form 86 to apply for leave for judicial review in respect of the decision of the Board. The applicant did not provide any grounds of review and only stated that she wished to stay in Hong Kong in order to obtain medical treatment for her son, who is a Hong Kong resident and who has a father who lives here.  She has not complained of any specific procedural irregularity, unfairness or unreasonableness. 

6.  The application was disposed with on paper and by the CALL-1 Form of 23 June 2020, the application was refused. The Judge, after summarizing the facts and background of the case and giving due consideration of the decisions of the Director and the Board, gave the following reasons and findings at [11] – [12] of the CALL-1 Form:

“11.   Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully.  I have looked in particular inter alia, into the issue of her son’s health, but I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  The applicant’s case was wholly without merit.  Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state her case and enquired into that case appropriately.  He was sympathetic to her position but he was required to consider her application within the confines of the applicable regime principles.  There is no criticism of his determination, which was open to him on the facts and eminently reasonable and fair.

12.    In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave.  I therefore refuse leave for judicial review.”

The Appeal

7.  On 6 July 2020 , the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal are as follows:

“1. In my Decision the Honourable Justice refused my leave application for judicial review because there are no realistic prospect of success in my claim, but there are still risk of my and my son’s lives would be at danger upon refoulement to my country.

2.    Failed to consider my fear, and did not conduct any oral hearing for my review application.”

8.  In compliance with the direction given by Master Tsui on 21 October 2020, the applicant lodged her written submissions on 19 November 2020. In her written submissions, she advanced the following:

(1)  The Board and the Director failed to comply with their duty to make sufficient inquiries into the Country of origin conditions of her claim and adopted a passive approach in contravention of the high standards of fairness as laid down in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and TK v Michael Jenkins & Anor [2013] 1 HKC 526.

(2)  The Board and the Director had failed to take into account and/or give proper weight to relevant considerations and materials which they should have, and hence the decisions were illegal.  Specially, the Board and the Director had failed to give due regard to:

(a)  the fact she would face real risk upon refoulement because of her fear of her enemies and that her life would be in danger; and

(b)  the fact that she had been placed in severe mental distress and that she would definitely face difficulty from her enemies upon refoulement.

(3)  Her claim is not personal or private in nature as she fled for her life from a group of murderer who will hunt her wherever she hides in Philippines.  There were no clear directions from the decisions why she would not be a subject of persecution upon refoulement. The Board and the Director failed to assess her fear to return to her country as her enemies are still looking for her. 

9.  We heard the appeal on 22 December 2020.  The applicant had nothing further to say. 

General Principles

10.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]:

(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 issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI 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 the decision of the Board.

(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 or for running arguments which could and should have been raised but not raised before the judge.  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.

(3)  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 this Court 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 stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). 

Discussion

11.  Regarding her complaint of the Judge’s failure to conduct an oral hearing for her application, it was duly explained in [3] of the Call-1 Form that the applicant did not request for a hearing in Form 86 nor had she stated such a wish in her supporting affirmation. Pursuant to Order 53 rule 3 of the Rules of the High Court, the Judge had rightly proceeded to determine the application for leave on consideration of documents only without a hearing.  The applicant’s complaint is devoid of merit.

12.  In our judgment, nothing set out in the summons or the written submissions can be construed as valid ground of appeal.  After reviewing the materials placed before this Court, we agree with the Judge that the applicant’s application is not reasonably arguable and the intended judicial review has no prospect of success.

12.   Further, having read the decision of the Board, we take the view that the Board had carefully analysed and fully considered the applicant’s case and had come to the right conclusion that on the account of events of the applicant, her case was not qualified for non-refoulement protection in Hong Kong. 

13.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.

[1] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[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 torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[4] 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.