RE ABESAMIS DONNA MAE GALVEZ

CACV 1/2024, [2024] HKCA 456

On Appeal From [2023] HKCFI 3309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 1 OF 2024

(ON APPEAL FROM HCAL NO. 1547 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Cheung JA (giving the Judgment of the Court)  :

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge To of 18 December 2023 in which he refused to grant leave to her to apply for judicial review.

2.  This appeal was scheduled to be heard on 17 April 2024.  Despite the directions contained in the letter from the High Court to the applicant dated 5 March 2024, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly the Court informed the applicant by letter dated 27 March 2024 that the hearing would be vacated and the Court would deal with this appeal on paper which we will now do.

2)  Factual background

3.  The applicant is a national of the Philippines.  On 5 December 2017, she arrived in Hong Kong on the strength of her passport and was permitted to remain as a foreign domestic helper but her contract was prematurely terminated and she overstayed since 15 August 2018[1]. In December 2018, she applied for non-refoulement protection[2].

4.  The basis of the applicant’s claim is that she would be harmed or killed by a politician by the name of Grace Padaca as she blamed the applicant for her loss in an election[3].

5.  The background facts have been summarized in the decision of the Judge at [4]-[9].

3)  The Director’s Decision

6.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 11 February 2019.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk, Bill of Rights Article 2 (right to life)  risk as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’)  on 27 February 2019.  After a hearing held on 7 May 2019, the Board dismissed the applicant’s appeal on 23 May 2019 (‘the Board’s Decision’).

8.  The Board found that there were numerous inconsistencies in the applicant’s evidence which in turn made her not a witness of truth.  One of the most flagrant inconsistency related to the gubernatorial election which the applicant alleged she had participated in.  It actually took place on 9 May 2016 while she was working in Hong Kong as a domestic helper.  It did not take place in 2015 as she alleged in her documents[4]. The applicant also had a lack of understanding of the relevant gubernatorial elections, such as the number of voting precincts[5]. The Board concluded that the inconsistencies could not be explained by the applicant and that she had fabricated most if not all of her evidence.  The Board rejected most of her evidence, including that she had worked for Grace Padaca, that Padaca had given her money, that she had been stabbed in the thigh by Padaca or by men, that Padaca tortured the applicant or that the state was unwilling to help the applicant.  The applicant failed to prove that her fear was well-founded[6].

5)  Decision of the Judge

9.  The applicant filed her Form 86 supported with affirmation.  She complained that the hearing bundle was only given to her six days prior to the hearing and the documents were in English and also she was unrepresented.  She also complained that the Board relied on country of origin information which was not officially recognized or simply hearsay or cases used were outdated.  The essence of her complaint was procedural unfairness and error of law in taking into account irrelevant information or not taking into account relevant information[7].

10.  The Judge held that high standard of fairness does not entitle the applicant to have free legal assistance at all stages of the proceedings.  The applicant had the benefit of legal assistance before the Director.  As for the applicant’s complaint that the hearing bundle was in English, high standard of fairness does not include provision of interpretation service at any time the applicant desires.  The hearing bundle contained documents that the applicant was familiar with.  The applicant’s failure to prove her fears is a failure to prove her case on the merits, and the Board did not rely on any COI information to hold that it was safe for the applicant to return[8].

6)  Grounds of appeal

11.  The applicant in the notice of appeal stated the following :

‘ And further take notice that the grounds of this appeal are that the Court has ordered that the leave to apply for judicial review be refused. I am not agree with the decision of the Court, because the Court of First Instance did not scrutinize my leave application properly. I have severe problem in my home country. If I return back there I will be killed by my enemy, but the Torture Claims Appeal Board and the Director of Immigration did not consider my problem properly. All the decision makers made the decisions with simply hearsay.’

7)  Our view

12.  We are of the view that the applicant’s submissions consist of bare allegations without particulars or specifics.  The applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or that the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

13.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.

14.  We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.