RE BADINAS GEMMA LEARDO

CACV 634/2020

[2021] HKCA 1080

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 634 OF 2020

(ON APPEAL FROM HCAL NO. 2197 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 20 November 2020[1] refusing to give her 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 21 September 2018 dismissing her appeal against the decision of the Director of Immigration (“the Director”) dated 15 December 2017 rejecting her non-refoulement claim.

2.  The applicant has consented to the appeal being heard by two judges of the Court of Appeal.

3.  The applicant is a national of the Philippines aged 45.  She previously worked in Hong Kong as a domestic helper.  She last entered Hong Kong as a visitor on 18 December 2012 and was given permission to stay for two weeks.  She overstayed and surrendered to the Immigration Department on 18 November 2014.  She later raised a non-refoulement claim.  

4.  The applicant’s claim is based on fear of being harmed or killed by her ex-husband, who is a police officer, because of her extra-marital relationship with a man (“Chan”).  Her claim was set out in detail in the Director’s decision at [8] and the Board’s decision at [9] and summarised by the Judge in [1] to [7] of the Form CALL-1. 

5.  In gist, the applicant claims that her ex-husband was abusive towards her and the marital relationship was poor.  In 2004, after discovering her husband had an extra-marital relationship, she decided to leave her marriage and came to Hong Kong to work as a domestic helper.  While in Hong Kong, she formed a relationship with Chan, who is a local resident.  In January 2007 when the applicant was back in the Philippines, her husband discovered her relationship with Chan.  He beat her up and detained her in his office for three days.  When he finally released her, he threatened to kill her if she did not end her relationship with Chan.  The applicant later returned to Hong Kong to work.  She resumed her relationship with Chan and was pregnant with his child.  In September 2008, she terminated her employment and cohabited with Chan.  In 2010, she served divorce papers on her husband, who was enraged and did not respond.  Thereafter, she shuttled between the Philippines and Hong Kong.  She also gave birth to two twin daughters out of her relationship with Chan.  Unfortunately, one of the twin daughters died due to illness.  In 2017, she unilaterally dissolved the marriage.  She learnt from her ex-sister-in-law and friend that her ex-husband still bears grudges against her. 

6.  By his decision dated 15 December 2017, the Director rejected the applicant’s claim having regard to the torture risk^[2], persecution risk^[3], BOR 3risk^[4] and BOR 2 risk^[5] grounds.   

7.  The applicant appealed the Director’s decision to the Board.  The Board heard her appeal at an oral hearing held on 1 August 2018 during which the applicant gave evidence and answered questions from the Board.  By its decision dated 21 September 2018, the Board dismissed the appeal. In summary, the Board accepted the applicant’s case that during their marriage, her former husband had abused and threatened her.  The Board, however, found no evidence of any more threats from him since 2007 and doubted whether he would still have any adverse interest in her after so many years. The Board further considered that it was a private domestic dispute, and that any risk of harm would be lowered or negated by the availability of state protection and internal relocation alternatives.  The Board concluded that she failed to make out a case for non-refoulement protection.

8.  On 11 October 2018, the applicant filed a Form 86 together with an affidavit to apply for leave to judicially review the decision of the Board.  The Judge had summarised the grounds put forward by the applicant in support of her application as follows (Form CALL-1 at [12]):

“(1) Procedural impropriety in failing to conduct sufficient inquiry into the relevant COI;

(2) Procedural impropriety/irrationality in failing to provide reasons for assessment of lack of BOR 3 risk and/or insufficient basis to support its conclusion of lack of BOR 3 risk;

(3) Error/Misdirection in law in failing to take into account or consideration of the psychological strain and threats to the Applicant personally or threats to her directly to kill her and her family members;

(4) Error/Misdirection in law in failing to apply or properly apply the obligation of a signatory state to adopt reforms or means of redress aimed at ensuring the safety of its citizens which are effective in any event;

(5) Procedural impropriety in failing to consider the concept of extended state acquiescence;

(6) Error /Misdirection in law in failing to consider the Applicant’s fear that she will face risk upon refoulement when the Director and the Board only focused that her claim is personal and private problem and that she did not suffer any physical harm from her enemies because she was in Hong Kong notwithstanding that her family had suffered and that she was mentally stressed while she received death threats;

(7)  Error /Misdirection in law in its assessment of the Applicant’s fear that she did not receive any physical torture while in the Philippines and that she could relocate to other places notwithstanding that she would be living in fear that her former husband could locate her and harm her children that would cause her mental stress which the Director and the Board did not consider.” 

9.  The Judge heard the application at an oral hearing.  For reasons set out in [13] to [17] of the Form CALL-1, the Judge refused to extend the time for applying judicial review and dismissed the application:

“13. These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the Adjudicator had erred in the decision, or why is the concept of extended state acquiescence relevant to her claim, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in her case, or in what way did the Board fail to conduct sufficient inquiry into the relevant COI. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16. In the premises and 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 or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

17. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

10.  The applicant filed the notice of appeal on 3 December 2020 to appeal the Judge’s decision.  She gave the following as her grounds of appeal:

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

11.  The applicant put in a written submission on 21 June 2021 in which she stated that she will be in grave danger if she returns to the Philippines and the Board was misguided to think that rule of law was practised in the Philippines.  She also made the following arguments:

(1)  In common law, the function of judicial review is about setting the boundaries of government power.  The court should consider whether the assessor fully understood her problems in the Philippines.

(2)  Human rights reports on the Philippines show the country to be fraught with unlawful killing by police and armed individuals, and is ruled by a dictatorial president.  There were many extrajudicial killings.  How can she trust that she will be safe when she returns?

(3)  The Immigration Department believes her fear of loss of life is a myth.  In actual fact, the Philippines is notorious for extrajudicial killings.  The Court believes that the Immigration Department had done a thorough analysis based on COI, but in reality women in the Philippines are extremely vulnerable and not protected from domestic abuse.

12.  We heard the appeal on 20 July 2021.  At the hearing, the applicant stated that recently the daughter she had with the ex-husband told her that her father would never forget, and that one would not know what would happen to the applicant if she should show her face.  The applicant reiterated that she could not return to the Philippines as her life would be in danger and her ex-husband has a wide connection.  

13.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

14.  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board.  They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

15.  The role of the court in a judicial review is not to provide a further avenue of appeal.  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.  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 and/or the process by which the decision was made.

16.  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.

17.  In light of the established legal principles set out above, we are of the view that the grounds of appeal and the arguments put forward by the applicant do not constitute viable grounds of appeal. Firstly, 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’s ground of appeal and arguments are directed at the general social conditions and government administration in the Philippines as well as her personal situation.  They do not address the core reasons for the Judge’s decision, namely, there is no proper basis to review the Board’s assessment of the risk of harm and conclusion that the applicant’s case does not fall within any of the applicable grounds for granting non-refoulement protection.  The applicant has failed to identify any errors in the Judge’s reasons. 

18.  Secondly, the Judge was correct in pointing out that evaluation of risk of harm and assessment of country of origin information are matters for the primary decision makers and not for the court.  The Board, while accepting that the applicant’s ex-husband was angry about her relationship with Chan, was not satisfied that he would still pursue the applicant and/or harm her after all these years.  Despite the applicant’s oral submission at the appeal hearing, we are not persuaded that it has been demonstrated that the Board’s assessment of risk of harm should be overturned as being wrong in law, irrational, or procedurally flawed. 

19.  We agree with the Judge that the intended judicial review is unarguable and has no reasonable prospect of success. Accordingly, we dismiss the appeal.