RE TORDILLOS ELLA CASUMPANG

CACV 227/2020

[2020] HKCA 1042

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 227 OF 2020

(ON APPEAL FROM HCAL 1859/2018)

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J U D G M E N T

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Hon P Ng J (giving the Judgment of the Court):

1.  This is an appeal against the Order of Deputy High Court Judge K.W. Lung dated 18 June 2020 refusing leave to the Applicant to apply for judicial review. The intended judicial review was against the Decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“Board”) dated 7 June 2018 dismissing the Applicant’s appeal against the Decision of the Director of Immigration (“Director”) dated 14 June 2017 in rejecting the Applicant’s non-refoulement claim.

Background

2.  The Applicant is a national of the Philippines from the province of Negros Occidental.  She worked as a domestic helper in Hong Kong from 1984 to July 2008 when her contract ended.  During her stay in Hong Kong as a domestic helper, she had returned to the Philippines when her employer allowed her to take annual leave.  Her last visit to the Philippines was in 2007.  The Applicant last returned to Hong Kong as a visitor on 9 July 2008 and was allowed to stay until 11 July 2008.  She overstayed from 11 July 2008 onwards and surrendered herself to the Immigration Department on 24 March 2014.  She lodged a non-refoulement claim by written representations on 19 March and 16 May 2014. 

3.  The Applicant claims that she is in fear of being harmed or killed by members of the New People’s Army (“NPA”) if she returns to the Philippines.  Details of the Applicant’s claim have been summarised by the deputy judge at [5] of the Form CALL-1 and more particularly by the Board at [20] - [29] of the Board’s Decision.

4.  In the Director’s Decision, the following grounds for non-refoulement protection ie BOR 2 risk, BOR 3 risk, persecution risk and torture risk were assessed and rejected.  The Applicant then appealed to the Board.  After an oral hearing, in the Board’s Decision dated 7 June 2018, all the aforesaid grounds were assessed and rejected.  In addition, the Board was satisfied at [72] of its Decision that internal relocation would be viable.

The judge’s decision

5.  The Applicant filed a Form 86 on 6 September 2018 which contained the following ground for seeking relief:

“The [Board] did not know the risk I face if they send me back in the Philippines. It’s a suicide for me if I’m going back to my country. It’s only 11 years that I know they are still looking for me (NPA) 2007 they are in my place watching me when I’m home for the funeral of my brother in law”

6.  In her affirmation in support, the Applicant stated that:

“I am appeal the decision of [the Board]. I don’t want to return in the Philippines because my life is at risk from the peoples army (N.P.A.)”

7.  The Applicant also set out in her affirmation a number of “Grounds of Appeal/Petition” which were concerned with the decision of the Director. As recorded by the deputy judge at [12] of the Form CALL-1, the Applicant did not set out any ground in support of her application. Nor did she say the Board was in error in coming to its decision. 

8.  An oral hearing was held before the deputy judge.

9.  At [13] to [17] of the Form CALL-1, the deputy judge gave the following reasons in refusing leave to apply for judicial review:

“13.  The applicant appeared before me. She said that she was treated fairly by the immigration officer and the Adjudicator of the Board. Her lawyer had explained the Director’s Decision to her and she could read the Board’s Decision herself.

14.  I put the Board’s findings to her and asked her if she had any comments on them. She said that she was still in danger if she returned to the Philippines and she had no further comments.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …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.’

16.  There is nothing to show that the Board had committed any error in its application of the law to her case or in coming to its conclusions on the facts of the case.

17.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”

This appeal

10.  In the Notice of Appeal dated 30 June 2020, the Applicant’s grounds of appeal are that:

“…the Plaintiff will face hardship if [she] is to return back to [her] home country and that the [Board] has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations”

11.  In her skeleton submission dated 9 October 2020, the Applicant cited 2 Hong Kong authorities viz ST v Betty Kwan [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKRLD 289 on the requirement of “high standards of fairness” without explaining how they assist her in this appeal or in what way the deputy judge has fallen into errors.

12.  We heard the appeal on 15 December 2020. The Applicant, who appeared before us at the hearing, indicated that she had nothing to add to her Notice of Appeal and skeleton submissions.

13.  In re Kartini unrep, CACV 240 of 2019, Lam VP and Bharwaney J, 9 September 2019, Lam VP (giving the Judgment of the Court) at [13] highlighted the general propositions that Court of Appeal has adopted in determining an appeal for non-refoulement cases as follows:

“(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. 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.”

14.  In the present case, the Applicant fails to identify any error on the part of the deputy judge in the Notice of Appeal or her skeleton submission.  She has only highlighted certain alleged errors on the part of the Board in the Notice of Appeal. Specifically, with regard to the Applicant’s persistent claim that it would be unsafe for her to return to the Philippines, this had been canvassed and rejected by the Board who was also satisfied that internal relocation was a viable option. For reasons given in Form CALL-1, the deputy Judge had refused to intervene by way of judicial review.

15.  Essentially, what the Applicant has stated in the Notice of Appeal was an invitation to this Court to review the Board’s Decision afresh.  As stated above, it is not the role of this Court to re-examine the decision of the Board as if it were a fresh application for judicial review.

16.  No valid grounds of appeal against the deputy judge’s Decision have been put forward by the Applicant.  In any event, we have examined the deputy judge’s Decision and cannot find any of those errors highlighted in re Kartini which would entitle this court to reverse his Decision.

17.  We agree with the deputy judge that leave to apply for judicial review should be refused.

18.  For these reasons, we dismiss the appeal.