ASUNCION RAEL CABILIS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 151/2024, [2024] HKCA 895

On Appeal From [2024] HKCFI 939

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 151 OF 2024

(ON APPEAL FROM HCAL NO 1331 OF 2019)

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J U D G M E N T

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Hon Fung J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”)  on 11 April 2024[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 6 May 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 27 February 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines born in 1976.  He first entered Hong Kong as a visitor on 19 February 2015 and subsequently travelled to and from Macau and Mainland China on multiple occasions.  The applicant last entered Hong Kong on 2 May 2015 and was permitted to remain as a visitor until 16 May 2015.  He overstayed and was subsequently arrested by the police on 28 July 2015.  He lodged his claim for non-refoulement protection on 21 September 2015.  The applicant’s claim was made on the basis that if he returned to the Philippines, the congressman’s family (“Vargas Family”)  and the New People’s Army (“NPA”)  would harm or kill him due to his previous campaigns or protests against mining business the congressman and his family and due to his refusal to join the NPA respectively.  The factual background of the applicant’s claim was set out at [11] of the Board’s decision.

3.  By notice of decision dated 27 February 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] 

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 7 September 2018, during which the applicant gave evidence and answered questions from the Board. The Board rejected the applicant’s version of events, because her version about the election in 2010 did not record with the facts, and it accepted that the police and the military had not arrested and detained the applicant, that he had not staged or joined campaigns against the congressman three months prior to the 2010 election, that he was not threated by the congressman’s daughter, and that his purpose in coming to Hong Kong was not simply to seek protection.

5.  Although the Board assessed the applicant to lack credibility, it proceeded to consider the risk of harm faced by the applicant if he was refouled to the Philippines.  It found there was in fact a low risk of harm if the applicant returned to the Philippines, because there was no evidence that the NPA would still be interested to invite the applicant to be a member many years after the applicant’s claimed events between 2009 to 2011, the NPA could have harmed the applicant or his family a long time ago (before the applicant left the country)  if they had meant to, the Vargas Family had never inflicted any actual abuse on the applicant (aside from a verbal threat), the verbal threat did not stop the applicant from making protests against the congressman and the Vargas Family, the applicant was unlikely a live issue as the mining project was stopped in 2010 and the political elections were finished a long time ago, and there was no evidence that the Vargas Family were influential outside the province of Cagayan.  Further, the Board found that the applicant and the Vargas Family’s problems were private in nature with no state or government connections, that the applicant obtained his passport and left the country without any obstruction, and that state protection was an available and reasonable option. Moreover, the Board further found that the NPA continued recruitment without the applicant’s help and the applicant did not know the status of that commander, so the applicant’s continued fear was unnecessary, that the Vargas Family could have killed the applicant a long time ago and not only made a verbal threat, that internal relocation to Pangasinan or other areas in the Philippines would be reasonable for the applicant.  

6.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to the Philippines.  By its written decision dated 6 May 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.  On 17 May 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, he merely stated that he was not satisfied with the Board’s decision and annexed the Board’s decision.

8.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 11 April 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [15] to [19] of the Form CALL-1 as follows:

“ 15. 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

17. 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.’

18. The Board, for the reasons given in paragraphs 10 and 11 above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

  19.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

Appeal to this Court

9.  On 18 April 2024, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that the Judge failed to consider the facts of his claim and failed to consider his facts under BOR2 and BOR3 risks.

10.  The applicant has lodged written submission in which he stated that the Board and the Director assessed no risk for the applicant but his fear continues in his home country, that the Board and the Director failed to consider and/or give proper weight to relevant consideration and materials, that the Judge failed to adhere to a high standard of fairness by supporting the Board’s decision but the Board failed to inquire about his fear, that his claim falls under BOR3 risk, and that the Judge did not observe his fear properly.  

11.  At the hearing, the applicant did not make any submission beyond those he had submitted in writing.

12.  As such, we shall accordingly determine the appeal on the basis of the available documents, materials and evidence submitted by the applicant.

Discussion

13.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see 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].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

14.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it found the applicant’s claims to lack credibility and it rejected the applicant’s claimed version of events.  Despite its factual findings, the Board had nevertheless considered the applicant’s risk of harm (including BOR3 risk)  and concluded that it was very low with state protection and internal relocation as reasonably viable options.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  The applicant has failed to show any reasonably arguable ground for saying that the Board’s decision should be impugned due to public law errors.

15.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

16.  The applicant’s appeal is accordingly dismissed.