RE PIMENTEL, NORBERTO NISPEROS

CACV 350/2019

[2019] HKCA 1331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 350 OF 2019

(ON APPEAL FROM HCAL 1818/2018)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) on 19 July 2019 refusing leave to the applicant to apply for judicial review. 

Background

2.  The applicant is a national of the Philippines.  He arrived in Hong Kong on 7 February 2015 with a permission to remain as a visitor for 14 days.  He did not depart upon the expiry of his permission to remain, and overstayed illegally.  He surrendered to the Immigration Department on 4 March 2015 and lodged his claim for non-refoulement protection on the same day.

3.  The applicant’s claim was based on the fear that, if refouled, he would be killed because of a land dispute between him and a woman named Ann Silvestre.  It was his claim that he and his son were falsely accused of various charges as a result of the dispute, but they were later acquitted. The brief facts of this case were summarized by the Judge in [4] of the Form CALL-1 ([2019] HKCFI 1798).

4.  The Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds, including the risk of violation of the absolute and non-degorable rights guaranteed under the Hong Kong Bill of Rights (particularly the BOR 2 risk[1] and the BOR 3 risk[2]), the persecution risk[3], and the torture risk[4]. By a notice of decision dated 16 March 2018, the Director determined the claim against the applicant.

5.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) against the Director’s decision.  An oral hearing was held on 17 July 2018, where the applicant elected to give evidence.  By a decision given on 27 August 2018, the Board dismissed the applicant’s appeal/petition. Having assessed his evidence, the Board found that the applicant and his son had been treated justly and fairly by the Filipino court[5]. It was found that Ann Silvestre and anyone on her behalf had never physically harmed the applicant or his son[6].  Nor did it accept the rumor regarding the hiring of assassins by Ann Silvestre to be true[7].  The Board found the applicant untruthful in his claims about fear of Ann Silvestre.  The Board also considered that the delay in leaving the Philippines after the dismissal of the criminal charges against him undermined the credibility of his evidence on fear[8]. Internal relocation was also taken to be a viable option for the applicant[9]. Accordingly, the Board found that there was not a real risk that the applicant would face any harm if refouled.

The Judge’s decision

6.  By a Form 86 filed on 3 September 2018, the applicant sought leave from to apply for judicial review against both decisions of the Director and the Board.  The grounds of review were summarized by the Judge in [12] of the Form CALL-1.  Only two grounds related to the Board’s decision.  In ground 1, the applicant complained that the decision was not reasonable or fair as it contravened the BOR 2 protection by disregarding the extra-judicial killing that the applicant would face if refouled.  In ground 7, the applicant also said that the Board failed to give him sufficient time and chance to arrange relevant evidence.

7.  The Judge held an oral hearing on 11 April 2019.

8.  The Judge held in [14] of the Form CALL-1 that, in reliance on the case Re Moshsin Ali [2018] HKCA 549, the applicants could no longer seek judicial review against the decision of the Director as that decision had been overtaken by the Board’s decision.  The applicant’s application for leave to judicial review against the Director’s decision failed in limine.

9.  As mentioned earlier, the Judge refused to grant leave for the applicant to apply for judicial review.  His reasons in refusing leave were set out in the Form CALL-1 as follows:

“ 17. The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. His lawyer had explained the Director’s Decision to him. His friend had explained the hearing bundle and the Board’s Decision to him. He considered he had had a fair hearing before the Board.

18. I put the Board’s findings above to him and asked him if he had any comments on them. He said that he had no comments.

19. It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.

20. Grounds (1) and (3) to (7) are his opinions without any evidence in support of them. They fail.

21. Ground (2) is irrelevant as he had no factual basis in support of this ground.

22. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.”

The appeal

10.  On 30 July 2019, the applicant filed a notice of appeal against the Judge’s decision.  He stated in the notice that:

“ … [he] will face hardship if he is to return back to his home country and that the [Board] has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” (sic)

11.  The applicant lodged his written submissions on 26 September 2019.  In it, he referred to the cases of ST v Director of Immigration[10] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and R v Home Secretary, ex parte Doody [1994] 1 AC 531 for the proposition that high standards of fairness are required in determination of torture claims.   

12.  We heard the appeal on 25 November 2019.  At the hearing, the applicant indicated he had an additional document to be produced.  However, he had not brought along the document to the hearing.  He did not explain why he did not mention this in his notice of appeal or submissions.  When probed further, he said it was a document of 2014.  He said he had not been able to locate it until about a month ago.  He however could not explain, if such document is of any importance to his case, he did not take steps to locate the same when he made the application before the Director in 2015, or before the Board in 2018 or before the Judge in 2019.  Since he did not even bring the document along, we could not see how the document could advance his case and how reliable it was.  The applicant did not satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489 and in line with established practice we refused to grant leave to the applicant to produce the new document, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Halim Abdul v Kay Ransome [2019] HKCA 354.

General principles

13.  For the purpose of this appeal, we would highlight the following salient propositions concerning appeals in 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 scrutinizing 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, country of origin information (“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, 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 or for running arguments which could and should have been raised but were not raised before the judge. In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)     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 the Court of Appeal to examine the 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).   

Discussion

14.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection in Hong Kong because of its assessment that there was no real risk that the applicant would face any harm if returned to the Philippines.  It was also found that internal relocation was a viable option for the applicant. 

15.  As we explained above, the assessment of the risk of harm and the viability of internal relocation are all within the province of the Board.  The court will not interfere with these findings unless an applicant can demonstrate that these findings are reversible on public law grounds. Having considered the materials available before him, the Judge found the applicant failed in demonstrating any reasonably arguable grounds.

16.  In this appeal, what was stated in the notice of appeal is basically general assertion against the Board.  The applicant did not advance any ground based on out-datedness of COI in his Form 86. In this appeal, he did not identify such outdated and unreliable COI which the Board wrongfully took into account. This Court cannot entertain such deficient ground on appeal. 

17.  In the absence of a reasonably arguable factual platform to support his contention, the legal authorities cited by the applicant in his skeleton submission cannot avail him in this appeal.

18.  On the whole, the applicant failed to pinpoint any viable arguments to reverse the Judge’s decision.

19.  On the contrary, we find that the Judge’s decision was fully justified.  Given the Board’s findings of fact, there was no reasonably arguable basis to challenge the Board’s assessment in respect of BOR 2 risk. As the Judge rightly pointed out in [20] of the Form CALL-1, there was no particular in support of his complaint that the Board failed to give sufficient time and chance to arrange relevant evidence. 

20.  Having considered the materials available before us, we agree with the Judge that leave should not be granted to the applicant to apply for judicial review.

21.  For these reasons, we dismiss the appeal.