BUNIAG RENANTE LULU v. TORTURE CLAIMS APPEAL BOARD

CACV 556/2021

[2022] HKCA 836

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 556 OF 2021

(ON APPEAL FROM HCAL NO 2162 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung (the “Judge”)  given on 3 December 2021 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (the “Board” and the “Board’s Decision”)  dated 14 September 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (the “Director”)  dated 25 May 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines.  He arrived in Hong Kong on 7 September 2017 as a visitor with permission to remain until 21 September 2017.  He overstayed and surrendered to the authorities on 10 October 2017.  He lodged a non-refoulement claim by way of written signification on 19 April 2018. 

3.  The applicant’s claim was based on threats of harm or death by his creditor Mrs Espiritu due to a loan dispute.  He claimed that his life would be in danger because of his participation in drug trafficking business in the Philippines.  According to the applicant, he borrowed money from his creditor in 2015 to run a piggery business.  His creditor’s husband was a retired Chief of Police at Pilar Police Station.  The applicant’s piggery business failed and he was not able to repay the loan.  In December 2015, his creditor brought three unknown men armed with guns and knives and threatened him to repay the loan.  The applicant was injured as a result, but he did not report to the police because he claimed that his creditor’s husband was well-connected.  In November 2016, the applicant started a drug trafficking business in order to repay his debts. Later in July 2017, the police discovered his drug trafficking business. Realising that his life would be in danger, he fled to Hong Kong for protection in early September 2017.  The details of the applicant’s claim are set out by the Board at [11] to [15] in the Board’s Decision, and summarised by the Judge at [5] of the Form CALL-1[1].

The Director’s Decision

4.  By a Notice of Decision dated 25 May 2018, the Director rejected the applicant’s claim on all applicable grounds on BOR 2 risk[2], BOR 3 risk[3], persecution risk[4] and torture risk[5].  The Director found that there was no substantial ground for believing that there would be any real and substantial risk of him being harmed or killed upon his return to the Philippines; that reasonable state protection was available to him and internal relocation was an option open to him. 

Proceedings before the Board

5.  The applicant appealed to the Board and a hearing took place on 24 August 2018.  On 14 September 2018, the Board dismissed the appeal. 

6.  At the hearing before the Board, the applicant requested more time to obtain his business permit and the press release on the “Oplan Tokhang” (“the Drug War”)  in the Philippines. The Board adjourned for a short while and provided the applicant with a print-out on the “Oplan Tokhang” from the Wikipedia.  He then agreed that he would just like to obtain his business permit and explained the reasons why he was not able to obtain it earlier.  He also wished to be released from the Castle Peak Bay Immigration Centre (“CIC”)  so that he could ask his relatives to get it for him.  However, the applicant was not sure whether he could obtain it, and how much time he would need.  The Board explained to the applicant that it had no authority to order him to be released from the CIC and asked if he needed more time.  The applicant made no clear indication but said that he would not answer further questions from the Board, and that the Board could make reference to the documents he had submitted earlier.  He also said that his mind was not clear at that moment.  As the applicant was not able to tell how likely he could obtain the documents and how much time he needed to do so, the Board refused his application.  The hearing ended after the applicant was asked to read the print-out on “Oplan Tokhang” and the applicant said he had no comment on it.

The Board’s Decision

7.  In those circumstances, the Board assessed the applicant’s claim on the basis of the available information before it.  The Board noted that the applicant had submitted 5 documents in support of his claim: (1) the First Written Submissions filed with the Director on 31 March 2018; (2) the Second Written Submissions filed with the Director on 19 April 2018; (3) his Non-Refoulement Claim form dated 3 May 2018 “NCF”; (4) the record of the screening interview conducted on 23 May 2018 and (5) the notice of appeal/petition filed on 8 June 2018.  

8.  Based on the materials submitted by the applicant, the Board found that the applicant failed to prove the primary facts of his claim.  He was not able to show why he started the piggery business and how the business had failed.  In relation to the loan, there were inconsistencies on the material facts, such as the time where the loan was made and his account of the threats and assaults made by his creditor, and the injuries he claimed to have sustained as a result of the assault in December 2015.  There was no mention of the existence of the second and the third loan in his NCF.  In relation to his drug trafficking business, the Board found that his accounts were vague and inconsistent.  There was no plausible explanation as to how the applicant was able to repay his debts, given that his earnings from his drug trafficking business were insufficient to repay the accumulated debts and interests.  The Board also found that the applicant did not mention in his NCF that the police raided his house in July 2017. 

9.  The Board held that, even if the applicant’s evidence was to be accepted, he still failed to establish a non-refoulement claim as (1) the alleged injuries did not attain a level of severity; (2) when he was able to repay the loan, there was no further violence and he could even secure additional loans.  This indicated that his creditor had no intention to kill him. 

10.  The Board also considered extensively the Country of Origin Information (“COI”)  of the Philippines on the government policy against drug trafficking and the on-going reforms which aimed at improving the conduct and effectiveness of the law enforcement agencies in the Philippines.  The Board was of the view that the availability of state protection could alleviate the risk of harm faced by the applicant. 

11.  As to his fear of harm from his drug dealings, the Board did not accept that the applicant was a target of the police because, even taking his claim to the highest, he was able to leave the country using his true identity and he could still choose to surrender at the first opportunity when he returns to the Philippines. Further, internal relocation to Cebu was a viable option for the applicant. 

The Judge’s Decision

12.  The applicant filed a Form 86 on 8 October 2018 for leave to apply for judicial review of the Board’s Decision.  In his supporting affirmation of the same date, the applicant asked the Court to review the Board’s Decision which dismissed his appeal on the basis that he failed to establish a case for non-refoulement under the principles of torture risk, BOR 2 and BOR 3 risks and persecution risks. 

13.  The applicant did not request an oral hearing before the Judge, who accordingly dealt with the application on paper.

14.  After summarising the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to give leave for judicial review.  The Judge first set out some of the basic principles in an application for judicial review in non-refoulement cases at [12] to [14] of the Form CALL-1:

“12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14. 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.’ ”

15.  In relation to the Board’s assessment of the applicant’s claim in light of the applicant’s refusal to answer further questions from the Board, the Judge analysed the relevant case law and held that there was no error of law or procedural unfairness in the Board’s Decision which justifies the Court’s intervention.  The Judge stated at [15] to [23] of the Form CALL- 1:

“15. He has submitted no valid ground to assist his application. However, the Board, adopting the Director’s Decision, dismissed his appeal on the grounds that his evidence had no credibility; that state protection was available to him and that internal relocation was an option open to him. The Court of Appeal in Re Masud MD [2021] HKCA 1449, 7 October 2021 ruled that where an applicant refused to give evidence or refuse to answer questions put to him by the Board, the Board should warn him that his case was bound to fail unless he continued to participate in the oral hearing, following the decision in Browne v Dunn (1894)  6 R 67 (HL)  (28 Nov 1893). The Court of Appeal stated:

‘32 One of such rules that may be of relevance is the rule in Browne v Dunn. The rule requires that if a cross-examiner intends to challenge a witness’s evidence on a particular point as being untruth, questions must be put to him to give him notice that his credibility on that evidence would be impeached. The essence of the rule is that where it is intended to suggest that a witness is not speaking the truth or is lying on a particular point, or if there is an intention to impeach the credibility of the evidence of the witness, this should be pointed out to him, so that he may have the opportunity of replying to, explaining or otherwise dealing with the aspect of the evidence, allegations or accusations to which his attention is drawn. If this is not done, the court would not know the explanations or information which the witness might have been able to provide if he had the opportunity to respond. It is not only a rule of professional practice and a rule of conduct to be observed by the cross-examiner, but is essential to fair play and fair dealing with witnesses. Allegations directed against documents produced by a witness are also covered by this rule.

33. There is also no need to put every minute detail of the case to the witness. The question is whether the witness was given notice that some aspects of his evidence would not be accepted or his credibility in that regard would be impeached.’

16. The issue of assessment of the evidence in situation where an accused in a criminal case elected not to give evidence was discussed in the Court of Final Appeal in Li Defan and Fan Ying Chao v HKSAR (2002)  5 HKCFAR 320. As the rule of evidence is more flexible in the trial of civil matters, the legal principles should also apply to civil matters such as this case.

17. The above is a criminal case tried by the District Court. The defendants were charged with bribery offence. Both of them had given video evidence at the ICAC. They elected not to give evidence at the trial. The trial judge drew adverse inference against their explanation in the video conference and convicted them of the charge. Before the Court of Final Appeal, the issue was whether the judge erred in law in saying that he could more readily draw inferences against the accused because they had not given evidence. One must bear in mind that for criminal matter, the burden is on the prosecution to prove its case. The defendant has no burden of proof of his innocence. In this matter, the burden is on the applicant to prove his case to the Board.

17(sic). On the question whether the court can draw adverse inference against the accused who elected not to give evidence, Lord Hoffmann said:

‘27. … It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence. The fact that the accused's failure to give evidence may have this consequence is something which, no doubt, an accused should consider in determining whether to exercise the right to silence ... But it is not to deny the right; it is merely to recognize that the jury cannot, and cannot be required to, shut their eyes to the consequences of exercising the right.’

18. As to the proper approach for a judge alone trial, the Lord Hoffmann was of the opinion that a single judge might be in a better position to assess the evidence than a jury and a common sense approach should be adopted:

‘31. It [is] my opinion it should equally be accepted that unless there are indications to the contrary, the judge is aware that the accused is not obliged to give evidence and that failure to give evidence is not an admission of guilt. If, therefore, the judge appears to have, or says he has, used the failure of the accused to give evidence as an element in the reasoning by which he arrived at a finding of guilt, the only question is whether on the particular facts of the case such reasoning was legitimate. As Lord Diplock remarked in Haw Tua Tau v Public Prosecutor [1982] AC 136, it is hard to say more than that this is a matter of common sense.’

19. In the hearing before the Board, the consequences of not answering questions from the Board or not giving evidence is quite apparent to the applicant. The burden is on the applicant to convince the Board that he had a genuine case for non-refoulement. His attendance is purely on the question of the facts he had alleged before the immigration officer. The Board will ask him no other questions than on the issues of the fact he alleged. The cross-examination of the Board may proceed further and deeper into the facts as explanations are given to it by the applicant. If he fails to convince the Board on the facts of his case, his claim has no chance of success.

20. In the Re Masud MD case, it seems that the appeal stands and falls with the credibility of the applicant’s evidence. In this case, the Board had considered state protection and internal relocation alternative, which the applicant has to overcome. Otherwise, he has no realistic prospect of success in his intended judicial review. He had failed to address the other issues as he chose not to give evidence himself.

21. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

22. There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

23.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

Grounds for appeal

16.  In the Notice of Appeal filed on 7 December 2021, the applicant did not set out any grounds of appeal.  He simply asked for a reversal of the decisions of the Director and the Board. 

17.  In compliance with the Court’s directions, the applicant lodged his written submissions on appeal on 9 February 2022.  In those submissions, he stated some general principles in relation to “high standards of fairness” and cited paragraphs 43 to 45 and 51 of Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289. 

18.  At the hearing, the applicant said he has a piece of evidence in the Philippines relevant to his case, which is a threatening letter sent by his debtor to him.  The letter was sent to him around two years ago but he has no idea why his brother did not send it to him.   

Discussion

19.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purposes of this appeal, the salient principles are 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 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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

20.  As held in Re Moshin Ali [2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board has been pursued and the Director’s decision has been superseded by the Board’s decision.  It is therefore not open to the applicant to challenge the Director’s decision by way of judicial review.  Hence, insofar as the applicant seeks to reverse the Director’s Decision in his Notice of Appeal, he is bound to fail. 

21.  In the present case, the applicant refused to answer questions from the Board, though the reasons for his refusal are not readily apparent from the Board’s Decision.  The applicant told the Board that it could make reference to what he said in the documents submitted earlier.  At some point, the applicant also told the Board that his mind was not clear. 

22.  The Judge noted at [15] of the Form CALL-1 that the Board has dismissed the applicant’s appeal on the grounds that his evidence had no credibility, that state protection was available to him and internal relocation was an option open to the applicant. The Judge went on to cite the case of Re Masud MD [2021] HKCA 1449, and stated that the Court of Appeal ruled in that case that where an applicant refused to give evidence or refuse to answer questions put to him by the Board, the Board should warn him that his case was bound to fail unless he continued to participate in the oral hearing, following the decision in Browne v Dunn (1894)  6 R 67 (HL)  (28 Nov 1893). 

23.  In Re Masud MD (supra), the Court of Appeal was of the view that the Board had not accorded the procedural fairness or high standard of fairness that the applicant was entitled to, because the Board has failed to point out or to give any notice to the applicant that the Board had concerns as to the inconsistencies and insufficiency of the applicant’s asserted facts (based on an assessment on the written materials before the Board)  and had failed to alert the applicant that his entire account of events would not be accepted by the Board unless he continued to answer questions in the oral hearing[6].  This was particularly crucial on the facts of that case because the applicant’s refusal to give further oral evidence was fatal to his claim, as seen from the Board’s reasoning.

24.  The Court of Appeal in Re Masud MD (supra)  was concerned of this lack of ‘warning’ to the applicant because the rule in Browne v Dunn (supra)  requires that if a cross-examiner intends to challenge a witness’ evidence on a particular point as being untruth, questions must be put to him to give notice that his credibility on that evidence would be impeached.  However, the Court of Appeal also pointed out that there is no need to put every minute detail of the case to the witness.  The question is whether the witness was given notice that some aspects of his evidence would not be accepted or his credibility in that regard would be impeached[7]. What fairness demands will depend on the facts of each case[8].

25.  The Court of Appeal in Re Masud MD did not lay down a rule that a ‘warning’ must be given whenever applicants refuse to give evidence or to answer questions from the Board, that their case will bound to fail unless they continue to participate in the oral hearing.  Rather, the Court of Appeal held that the Board would have to consider as a matter of fairness and on the facts before them, that in cases where the applicant’s refusal to give evidence would be fatal to his or her claim, the applicant should be given notice that some aspects of his or her evidence would not be accepted or his or her credibility in that regard would be impeached.  It may also be necessary in some cases to draw the applicant’s attention to the perceived inconsistencies, gaps, lack of particulars in the applicant’s asserted facts based on an assessment on the written materials before the Board, and to provide an opportunity to the applicant to respond if he or she wishes to. 

26.  In the present case, although the Board found that there were inconsistencies on the material facts which undermined the credibility of the evidence, it cannot be said that the applicant’s refusal to answer the Board’s questions was fatal to his claim, because the Board was of the view that, even if it accepted the applicant’s evidence, the applicant has failed to satisfy the threshold required to substantiate his claim on all applicable grounds.  For these reasons, even though the Board did not warn the applicant that the credibility of his evidence was at issue, it cannot be said that procedural unfairness has occurred. 

27.  In any event, the applicant did not in his Notice of Appeal advance any ground for reversing the Judge’s decision.  There are no reasons for the Judge to intervene in the Board’s Decision since no valid public law grounds had been shown. 

28.  As such, we do not see the letter from his debtor mentioned by the Applicant can in any way advance his case further.  In any event, the Court hearing an appeal or judicial review application rarely receives new fact or evidence since the primary decision makers are the Board and the Director and the Court only assumes a supervisory role. 

29.  In relation to the principles of law stated in the applicant’s written submissions, as this Court has previously stated, general assertions or propositions of law cannot assist the applicant when he fails to condescend to the requisite particulars related to the facts of his case: see Re Mizan Sikder [2019] HKCA 20; Ibrahim v Simon Russell [2019] HKCA 1327; Re Salim Ahmen [2020] HKCA 244.

30.  Having reviewed the decisions of the Director and the Board and the reasons given by the Judge for refusing leave to apply for judicial review, we agree with the Judge that there is no error of law or procedure in the decisions of the Director and the Board or any unfairness in the process, that the intended judicial review is not reasonably arguable and has no prospect of success, and that leave to apply for judicial review should be refused. 

31.  Accordingly, we dismiss the appeal.