RE GUANZON NOEL TORRES

CACV 617/2020

[2021] HKCA 1207

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 617 OF 2020

(ON APPEAL FROM HCAL NO 1431 of 2018)

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J U D G M E N T

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Hon Mimmie Chan J giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge C P Pang (“the Judge”) given on 11 November 2020 dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 13 July 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 28 February 2018 rejecting his non-refoulement claim.

2.  The applicant has consented to his appeal being heard by two judges of the Court of Appeal. The appeal is dealt with on paper without a hearing due to the non-compliance with the direction on the lodging of a skeleton argument as mentioned below.

3.  The applicant is a national of the Philippines. He entered Hong Kong on 12 September 2015 on the strength of his Filipino passport.  He was permitted to stay as a visitor until 26 September 2015.  He overstayed and surrendered to the Immigration Department on 7 October 2015. The applicant lodged a non-refoulement claim by way of written representation on 13 October 2015.

4.  The applicant’s claim is based on his fear of being tortured or killed by his separated wife, the husband of his ex-girlfriend, and the husband of his current girlfriend if he was to be returned to the Philippines.  His case was set out in detail in [8] of the Director’s decision dated 28 February 2018 and [17] to [30] of the Board’s decision, and summarised by the Judge in [2][3] of the Form CALL-1^[1].

5.  The applicant’s case, in brief, is as follows.  After getting married in the Philippines, the applicant has since separated with his wife in 2013.  In 2013, the applicant moved to work in Taiwan and met a woman who became his girlfriend. After she became pregnant in March 2015, she revealed to the applicant that she was in fact married in the Philippines.  They have broken up since then.  The applicant has not seen her since May 2015. After the applicant returned to the Philippines in mid 2015, he received threats and was punched in the face by a man who claimed to be the husband of the ex-girlfriend. The applicant noticed strangers frequenting the neighbourhood of his home, whom he believed were sent by the husband of his ex-girlfriend.  After the applicant arrived in Hong Kong, he met another Filipino woman who told him that she had separated from her husband in the Philippines without formally getting a divorce.  They co-habited in Hong Kong and have a daughter who was born on 5 August 2017.

6.  By his decision dated 28 February 2018, the Director rejected the applicant’s claim having regard to the torture risk^[2], persecution risk^[3], BOR 2 risk^[4] and BOR 3risk^[5] grounds.

7.  By its decision dated 13 July 2018, the Board dismissed the appeal having regard to all applicable grounds.  Primarily, the Board found that there was no substantial ground for believing that the applicant’s perceived fear was real upon his return to the Philippines.  In particular, the applicant and his wife have separated since 2013 and they have not met each other since then.  There was no basis for the applicant’s fear that his wife would cause any harm to him.  The same applies to the applicant’s fear of being harmed by the husband of his current co-habitant, whom he has never met before.  As to the threats received by the applicant in the Philippines, there was nothing to suggest that the husband of his ex-girlfriend would carry out such threats or cause further harm to him.  Further, there was no evidence that the strangers outside the applicant’s home in the Philippines were sent by the husband of his ex-girlfriend.  The Board also found that state protection as well as internal relocation options are available to him. The Board considered that the applicant could not substantiate his non-refoulement claim under the applicable grounds.

Application for leave to start judicial review

8.  On 20 July 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision. As noted by the Judge in [11] of the Form CALL-1, the applicant did not set out any ground in support of is application.

The Judge’s Decision

9.  The applicant’s judicial review application was dealt with on paper only.  On 11 November 2020, the Judge refused leave for the reasons set out in [12] – [21] of the Form CALL-1:

“12. 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. In particular, 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, 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, procedural unfairness or irrationality in the decision of the Board.

13. When the Applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.

14. In the present case, the Board did not take issue with the Applicant’s asserted primary facts and events. It however disagreed with the Applicant on the assessment of risk flowing from such events. Taking into account all the relevant circumstances, it rejected the Applicant’s claim based on its assessment of the risk of harm as well as its findings on the viability of internal relocation.

15. As explained above, the assessments of evidence, risk of harm, and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

16. The Applicant stated no grounds of the judicial review in Form 86. He mentioned nothing in the form or in the affidavit to suggest how the Board erred in the public law sense. In the absence of any error of law or procedural unfairness being shown by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

17. The alleged past ill-treatment or experience were of low intensity and frequency demonstrating no real risk of future harm. It also came nowhere near the level of severity required by law to constitute torture or CIDTP. The claimed fears for harm are wholly speculative. The evidence can hardly establish that the Applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

18. Both the Director and the Board engaged in a joint endeavour with the Applicant and considered all relevant criteria. They gave the Applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

19. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

20. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.

21. For the reasons given, there is no prospect of success in the Applicant’s intended application for judicial review.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 23 November 2020, the applicant appealed against the refusal of leave for judicial review on the following ground:

“I would like to reject and review the decision made by Torture Claims Appeal Board on my non-refoulement case. They disregard my dangerous situation.”

Non-compliance with directions

11.  Directions were given by the Registrar of Civil Appeals on 28 April 2021 for the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper. The directions were communicated to the applicant by the court’s letter dated 29 April 2021.

12.  The appeal was scheduled to be heard on 20 July 2021. The Notice of Hearing dated 17 May 2021 reminded the applicant to lodge his skeleton argument by 22 June 2021 and further warned that should he failed to do so he would be deemed to waive his right to have an oral hearing and the hearing date would be vacated with the hearing being determined on paper.

13.  The applicant failed to lodge a skeleton argument on or before 22 June 2021. The hearing date was accordingly be vacated. By letter dated 29 June 2021, the court informed the applicant that the hearing date of 20 July 2021 has been vacated and that this appeal will be dealt with on paper by the Court of Appeal.

Legal Principles

14.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

15.  The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin.

16.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration^[6] and we will not repeat them here.

17.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong^[7]. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall^[8] are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Discussion

18.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case.

19.  We are of the view that the matters stated in the notice of appeal do not constitute viable grounds of appeal.  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  In the present case, the applicant has not pointed to any error in the Judge’s reasons for decision.

20.  In any event, we have reviewed the Board’s decisions and the 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. The application for leave for judicial review of the Board’s decision was hopeless and rightly dismissed.  There is no basis to disturb the Judge’s decision.

21.  For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.