TAYLAN MYRA FE OVIEDO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 316/2020

[2021] HKCA 161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 316 OF 2020

(ON APPEAL FROM HCAL NO 2420 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 the applicant’s appeal against the decision of Deputy High Court Judge K. W. Lung (“the Judge”) given on 22 July 2020 dismissing her application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 22 October 2018 dismissing her appeal against the decision of the Director of Immigration (“the Director”) dated 26 March 2018 rejecting her non-refoulement claim.

2.  The applicant has consented to her appeal being heard by two judges of the Court of Appeal.

3.  The applicant is a national of the Philippines.  On 3 July 2009, the applicant came to Hong Kong to work as a domestic helper.  She overstayed after her contract was terminated prematurely and was arrested by the police on 24 June 2011.  She lodged a torture claim on 26 June 2011 which was dismissed by the Director on 3 February 2012.  A removal order was issued against her on 29 February 2012.  She later lodged a claim for non-refoulement protection from CIDTP risk[1] on 14 January 2014.

4.  The applicant’s claim was based on her fear of being harmed or killed by her husband who is a policeman and his friend who is a political leader.  The details of the applicant’s claim have been summarised by the Judge at [4] to [8] of the Form CALL-1[2].

5.  By his decision dated 26 March 2018 (“the Director’s decision”), the Director rejected the applicant’s claim having regard to the persecution risk[3], BOR 2 risk[4] and BOR 3 risk[5]grounds. 

6.  By its decision dated 22 October 2018 (“the Board’s decision”), the Board dismissed the appeal having regard to all applicable grounds.  Primarily, the Board found that the applicant was not a credible witness.  The Board was also satisfied that state protection would be available for the applicant. 

Application for leave to start judicial review

7.  On 31 October 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision which contained no ground for seeking the relief. 

The Judge’s Decision

8.  The Judge heard the applicant at the hearing on 26 September 2019.  The Judge summarized what the applicant said at [13-14] of the Form CALL-1:

“13.  The applicant appeared before me. She said that she was free to state her case before the immigration officer and before the Adjudicator at the Board hearing.

14.  I put the Board’s findings to the applicant and asked her if she had any comments.  She said that she had no comments.”

9.  After summarizing 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 gave the following reasons in refusing leave to apply for judicial review at [15] to [17] of the Form CALL-1:

“15.  The Court of Appeal in Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that the immigration officer and the Adjudicator are the facts finders. There is nothing amiss in the Board’s assessment of the evidence.

16.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

17.  Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 30 July 2020, the applicant appealed against the refusal of leave for judicial review on the following ground:

“I would like to reject and review the decision made by [the Board] on my non-refoulement case. They disregard my dangerous situation.”

Skeleton Submissions

11.  In her skeleton submissions dated 4 January 2021, the applicant stated that:

(1)  She will be in grave danger upon her return to the Philippines; and

(2)  The applicant referred to a report by the Amnesty International and another report by the Human Rights Watch and submitted that the government in the Philippines cannot protect her.

Legal Principles

12.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

13.  The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin. 

14.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[6] and we will not repeat them here. 

15.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[7]. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[8] are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court. 

16.  We heard the appeal on 1 February 2021.  At the hearing, the applicant said she was telling the truth but the Director and the Board did not believe in her. 

Discussion

17.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case.

18.  We are of the view that the matters stated in the notice of appeal and the applicant’s submissions do not constitute viable grounds of appeal.  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  In the present case, the applicant has not pointed to any error in the Judge’s reasons for decision. 

19.  Regarding what was stated by the applicant in her skeleton submission, we are of the view that it does not advance the applicant’s appeal.  The applicant did not refer to any of the human rights reports mentioned in the skeleton submission before the Judge in the leave application.  If there are changes in the circumstances or new information that are material to her case for non-refoulement, the applicant may consider providing the information or new evidence to the Director, who is the primary decision maker, pursuant to section 37ZO(2) of the Immigration Ordinance, Cap. 115

20.  In any event, we have reviewed the Board’s decisions and the Judge’s decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  The application for leave for judicial review of the Board’s decision was hopeless and rightly dismissed.  There is no basis to disturb the Judge’s decision. 

21.  For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.