RE CALAYO ELENA ANONUEVO

CACV 151/2022, [2023] HKCA 965

On Appeal From [2022] HKCFI 1002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 151 OF 2022

(ON APPEAL FROM HCAL NO 383 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 7 April 2022, by which the Deputy Judge refused her application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 1002).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 31 January 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 15 November 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  On 20 April 2022, the applicant indicated her consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceeded to consider this appeal on paper based on the available materials.

4.  Subsequently, by way of a Request for Dismissal of Appeal dated 29 May 2023, the applicant requested to withdraw the present appeal.

5.  On the basis of her request to withdraw her appeal on 29 May 2023 alone, we dismiss the applicant’s appeal.  But in any event, her appeal also fails for the lack of merit, which we will explain further below.

Background

6.  The applicant is a national of the Philippines.  She arrived in Hong Kong to work as a foreign domestic helper since 2013.  She was last granted extension to stay as a visitor until 27 August 2016 and she has overstayed since 28 August 2016.  On 1 September 2016, she surrendered to the Immigration Department.  On 10 March 2017, she lodged a non‑refoulement claim on the basis that she would be harmed or killed by a group of drug traffickers because her husband had been involved in drug trafficking for a local drug syndicate and that he owed the syndicate money.  Factual details of his non-refoulement claim were summarised by the Deputy Judge at [1] ‑ [4] of the Leave Decision.

7.  As noted by the Deputy Judge at [5] ‑ [8] of the Leave Decision, by the Director’s Decision and the Board’s Decision, both the Director and the Board dismissed her non‑refoulement claim on all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4].  In essence, having assessed the evidence, the Director and the Board considered that the applicant failed to substantiate her non‑refoulement claim on all the grounds.  In particular, the Board found that there was no reliable evidence of any threats from the drug syndicate against her other than her own speculation and hearsays.  In any event, the Board also held that state protection and internal relocation would be reasonable and available to her upon her return to her home country.  Accordingly, her appeal was dismissed by the Board.

The Leave Decision

8.  On 11 February 2019, the applicant filed her Form 86 and supporting affidavit, applying for leave to apply for judicial review against the Board’s Decision.  The applicant failed to provide any ground of review in her Form 86 or supporting affidavit.  As she did not request for an oral hearing, the Deputy Judge considered and determined her application on paper.

9.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out in detail at [9] ‑ [13] of the Leave Decision:

“9. On 11 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affidavit of the same date to which she just attached a copy of the decision but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality 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.

10. 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.

11. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim if true 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.

12. 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.

13. 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.”

The Appeal

10.  On 20 April 2022, the applicant filed a Notice of Appeal to appeal against the Leave Decision.  In her Notice of Appeal, the applicant only stated:

“I would like to reject and review the decision made by the court. They disregard my dangerous situation.” (sic)

11.  Pursuant to the directions of the Registrar of Civil Appeals dated 20 April 2022, the applicant lodged her written submissions on 4 May 2022.  In those submissions, she claimed that the drug syndicates are criminal organisations and that the illegal drug trade had been a major problem in the Philippines.  She also claimed that the police in the Philippines always sided with the influential and rich people and that she could not seek any assistance from them.  She also alleged that internal relocation was a myth as she would need to live as a fugitive to avoid getting caught and that she had no relatives or friends who would support her everyday living and that moving houses would be particularly stressful.  She repeated that her life would be in danger should she return to the Philippines.

12.  As mentioned above, by a Request for Dismissal of Appeal dated 29 May 2023, the applicant requested to withdraw the present appeal.

Discussion

13.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

14.  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’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

15.  At the outset, it is noted that the submissions raised by the applicant on appeal are all new and not before the Deputy Judge.  The applicant also did not give any reason as to why these grounds were only raised on appeal and not before the Deputy Judge.  It is well established that this court will generally not entertain new arguments which are fact‑and‑evidence sensitive and not canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].

16.  In any event, the allegations made by the applicant in her Notice of Appeal and written submissions are bare, vague and general without any evidence or specific particulars in support.  General assertions of her fear if refouled do not constitute proper grounds of appeal: see Re Farrukh Zaib [2020] HKCA 408 at [28].  Further, the applicant only disagreed with the decisions of the Director and the Board but failed to point out any error in the Leave Decision.  Accordingly, her submissions do not constitute proper grounds of appeal. 

17.  Moreover, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, Country of Origin information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  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: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].  As correctly noted by the Deputy Judge, there was no error of law or procedural unfairness in the decisions of the Director and the Board, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.  There is no basis for us to interfere with the Leave Decision.

18.  For the reasons given above, the applicant’s appeal has no merit and we dismiss it.