ESPIRITU CHRISTOPHER CABER v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 424/2019

[2020] HKCA 238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL APPEAL NO 424 OF 2019

(ON APPEAL FROM HCAL 1219/2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Marlene Ng J (giving judgment of the court):

I.  INTRODUCTION

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) given on 11 September 2019 refusing leave for the applicant to apply for judicial review. The intended judicial review was against the decisions of the Director of Immigration (“Director”) dated 21 August 2014 and 9 March 2017 rejecting the applicant’s claim for non-refoulement protection in Hong Kong as well as the decision of the Torture Claims Appeal Board / an adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 10 May 2018 upholding the Director’s decisions.

II.  BACKGROUND

2.  The applicant is a national of the Philippines. He last arrived in Hong Kong on 27 July 2008 with permission to remain as a visitor until 3 August 2008. He did not depart upon the expiry of his permission to remain, but overstayed illegally. He was arrested by the police on 27 October 2009 and raised a torture claim on 30 October 2009. Upon the commencement of the then unified screening mechanism, the applicant’s torture claim was assessed on all applicable grounds.

3.  The applicant’s claim was based on the fear that, if refouled, he would be harmed or killed by a man called Sapida because he witnessed Sapida’s murder of his friend. The factual background of this case was succinctly set out by the Judge at [4] of the Form CALL-1 ([2019] HKCFI 2250).

4.  By two notices of decision dated 21 August 2014 and 9 March 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him. The former notice covered the BOR 3 risk[1], the persecution risk[2] and the torture risk[3]; and the latter covered the BOR 2 risk[4].

5.  The applicant lodged an appeal/petition to the Board against the Director’s decisions. An oral hearing was held on 16 May 2017, but the applicant elected not to testify at the hearing. Upon consideration of the materials placed before it, the Board dismissed the applicant’s appeal/ petition on 10 May 2018[5]. The applicant claimed to believe that Sapida’s family was influential as the police had told him that a relative of Sapida was the mayor of Dasmarinas where the applicant and his family lived. But the Board found no evidence that Sapida was as influential as the applicant claimed he was. The alleged relationship between Sapida and the mayor was based on hearsay, and there was no evidence that the mayor (or anyone else) had sought to interfere in the investigation of Sapida’s involvement in the incident in any way[6]. Furthermore, according to the applicant, Sapida would no longer be prosecuted (or at least there did not appear to be any moves to continue the case against Sapida), so the Board could not see how there would be any risk to the applicant from Sapida[7]. The applicant’s belief that the police was corrupt and would kill him if he were to make a complaint was considered to be groundless speculation[8]. The Board also took into account the fact that the applicant had only met Sapida once in July 2007 and had heard nothing about him for over 10 years[9]. The Board concluded that the applicant would not face any risk if he returned to the Philippines. Finally, the Board also considered the applicant had returned to the Philippines on two occasions after the incident. On each occasion, he stayed and lived with his mother in Dasmarinas, and had not encountered any trouble with Sapida[10]. The Board was therefore satisfied that, if returned, the applicant could stay in Dasmarinas, but if there were any risk to the applicant (which the Board did not agree), it would not be unreasonable for him to move to another part of the Philippines, and there was no reason to suppose that Sapida or anyone else acting through him would be able to locate the applicant in other parts of the Philippines even assuming they wanted to[11].

III.  JUDGE’s DECISION

6.  The applicant filed his Form 86 on 28 June 2018 seeking leave to apply for judicial review against the decisions of the Director and of the Board. His grounds for judicial review against the Director’s decisions were summarised by the Judge at [11(1)] – [11(6)] of the Form CALL-1. The applicant’s grounds for judicial review against the Board’s decision were set out by the Judge at [11(7)] – [11(9)] as follows:

“(7)  the Adjudicator failed to make sufficient enquiry before making the determination;

(8)  the Adjudicator was wrong to demand evidence from the applicant because the applicant was being kept in the detention centre; [and]

(9)  the Adjudicator failed to give sufficient chance to the applicant to arrange relevant evidence to support the claim.”

7.  Upon the request of the applicant, an oral hearing was held on 21 December 2018. As mentioned earlier, the Judge refused the applicant’s application for leave to apply for judicial review. The judge referred to this Court’s decision in Re Moshsin Ali [2018] HKCA 549, and held that the Director’s decisions were not susceptible to judicial review, and dismissed the applicant’s application for leave to apply for judicial review against them. As regards the decision of the Board, the Judge gave the following reasons in refusing leave at [14] – [18] of the CALL-1 Form:

“14.  Grounds (1) to (7) are only his opinion without any evidence to support. They fail.

15.  Ground (2) is also his opinion without evidence to support. In fact, according to the fact found by the Adjudicator, this factor simply did not arise. This ground fails too.

16.  Ground (8) fails too as the Adjudicator was entitled to require the applicant to prove his case.

17.  Ground (9) fails because the applicant was unable to identify the evidence he intended to adduce to the Adjudicator.

18.  I find that the applicant was unable to show that his proposed judicial review has any reasonable prospect of success.”

IV.  THE APPEAL

8.  On 16 September 2019, the applicant filed a notice of appeal against the Judge’s decision. In the notice, the applicant stated: “I would like to reject and review the decision made by the Immigration Department on my non-refoulement claim on 11/9/2019. They disregard my dangerous situation”.

9.  In his skeleton submissions lodged on 16 December 2019, the applicant submitted that:

(1)  the Court should consider whether, when assessing his case, the assessor had fully understood his problem in the Philippines;

(2)  by referring to Amnesty International’s online Human Rights Report of the Philippines 2017/2018 as well as the Human Rights Watch’s online World Report 2019 on the Philippines, the applicant emphasised the extrajudicial killings referred therein; and

(3)  he criticised the finding by the Director that he would not face any risk of harm if refouled.

10.  By a letter dated 16 September 2019, the applicant gave consent that this appeal be heard by a 2-member court.

11.  This appeal was scheduled to be heard on 4 February 2020, but was adjourned due to the public health situation at the time. The hearing of this appeal was subsequently re-fixed twice, and we heard the appeal on 16 April 2020.

V.  GENERAL PRINCIPLES

12.  Before we address the merits of this appeal, we would highlight the general propositions that this Court has adopted in determining an appeal for non-refoulement cases:

(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 scrutinising the decision of the Board due to the seriousness of the issue at hand, the court should not usurp the role of the Board. Assessment of evidence and COI materials, 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 before, 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)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements of Ladd v Marshall [1954] 1 WLR 1489. In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4)  Further, due to the difference in the role of the court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(5)  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 was a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53 rule 4(1) of the Rules of the High Court Cap 4A.

VI.  DISCUSSION

13.  In the notice of appeal, the applicant referred to the decision made by the Director dated 11 September 2019. However, that decision was not made by the Director, but by the Judge. We would therefore treat this as an appeal against the Judge’s decision. In any event, as the Judge correctly held, the Director’s decisions are no longer susceptible to judicial review once the applicant had pursued an appeal to the Board.

14.  In the present case, the Board rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the viability of internal relocation. As we have explained above, such assessment and findings are within the province of the Board. The court will not interfere with the same unless they are reversible on the public law grounds. After considering the materials available before him, the Judge found no reasonably arguable basis to challenge the findings of the Board.

15.  In this appeal, the applicant did not put forth any viable ground to reverse the judge’s decision. The grounds stated in the notice of appeal and his skeleton submissions were essentially an invitation to the Court to reassess his non-refoulement claim afresh as if it were the primary decision-maker. As explained, this is not a permissible course on appeal.

16.  The online contents referred to by the applicant in his skeleton submissions are new evidence. We do not accept that they are admissible on appeal. First, the applicant did not explain why he could not obtain such evidence for use at the hearing before the Judge. Secondly, given the facts of this case, the political situation in the Philippines would not have an important influence on the outcome of the case. Accordingly, the requirements in Ladd v Marshall (supra) are not satisfied.

17.  Initially, we had a little concern regarding the Judge’s treatment of the applicant’s ground (8) for judicial review, namely that the Board was wrong to demand evidence from him when he was detained. The applicant stated this ground in the Form 86 thus:

“…… The Adjudicator stated that the applicant has failed to advance any credible evidence to prove the material elements of his claim. It is to be noted that the applicant is a torture-claimant who has no or limited options at his disposal to bring his evidence before the tribunal, and that to when he is in custody at the immigration detention centre…”

18.  We have this concern because, in Secretary for Security v Prabakar (2004) 7 HKCFAR 187 at [53] to [55], the Court of Final Appeal highlighted that regard has to be made to the difficulties of proof faced by a claimant and the need on the part of the Director to obtain the relevant information in some instances. This Court (differently constituted) had also emphasised that, whilst the applicant bears the burden to prove his claim, the Board and the Director should take a proactive approach in securing evidence in some circumstances: see Re Mohammad Palash [2018] HKCA 417 at [24] (where the Court held that the Board and the Director should proactively obtain evidence regarding Bangladeshi law on conviction in absentia). At [16] of his decision, the Judge rejected this ground simply on the basis that the applicant bears the burden of proof. It may be reasonably arguable that the Judge had not fully addressed this complaint in his decision.

19.  However, having perused the Board’s decision, we are satisfied that this ground for judicial review has no realistic prospect of success. In [36] of its decision, the Board commented that what was missing in the applicant’s claim was evidence to support his contention that Sipada had any sort of influence which could be a threat to him. Clearly, this cannot be an instance where the Director or the Board should take a proactive approach to procure the evidence on behalf of the applicant. In our view, based on the materials available before it, the Board was fully entitled to conclude that there would not be any risk to the applicant if he returned to the Philippines.

20.  In this appeal, the applicant failed to pinpoint any viable ground to reverse the Judge’s decision. Having considered the materials available before us, we cannot find any such ground either. We agree that leave to apply for judicial review should be refused.

21.  Accordingly, we dismiss the appeal.