DIGMA ARLENE BAYING v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 241/2023, [2023] HKCA 1096

On Appeal From [2023] HKCFI 1877

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 241 OF 2023

(ON APPEAL FROM HCAL NO 983 OF 2019)

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J U D G M E N T

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

1.  On 1 August 2023, the Applicant filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 27 July 2023 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 4 April 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 21 March 2018 rejecting her non-refoulement claim.

BACKGROUND

2.  The Applicant is a national of the Philippines. She last entered Hong Kong as a visitor on 16 May 2016, and did not depart after the expiry of her limit of stay. On 13 June 2016, she surrendered herself to the Immigration Department. On 4 August 2016, she lodged a non-refoulement claim on the basis that if refouled, she would be harmed or killed by her husband (Marlo Digma). Details of the Applicant’s claim were summarised by the Judge at §§4-5 of the CALL-1 Form.

3.  By a Notice of Decision dated 21 March 2018, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

4.  The Applicant appealed the Director’s decision to the Board. On 4 April 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §9 of the CALL-1 Form, as follows:

“Having considered the applicant’s evidence given before the Director [8]-[17] and those before the Board [18]-[29], the Board found that the applicant’s evidence on her contact with Marlo since she left the Philippines contained significant discrepancies; that the applicant’s explanation on her unwillingness to receive medical treatments or to seek police protection was unpersuasive; that the lack of medical evidence and police records undermined her credibility; that her alleged continuous threats from Marlo was without merits; and that the country of origin information indicated that state protection to women who were victims of domestic violence was available [33]-[42].”

THE JUDGE’S DECISION

5.  On 10 April 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86. In her supporting affirmation filed on the same date, she merely stated the following: “I just want to appeal because I’m not contented to the decision to my application”.

6.  On 27 July 2023, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[15] The ground in paragraph 11, supra [being a reference to the Applicant’s affirmation of 10 April 2019] is not valid to challenge the Board’s Decision.

[16] The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

[17] The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

THIS APPEAL

7.  In the “Grounds of Appeal for Digma Arlene Baying” attached to her Notice of Appeal filed on 4 July 2023, the Applicant reiterates that she will be in grave danger if she returns to the Philippines, and she will be killed, harmed and/or tortured by her abusive husband. The Applicant says that she left the Philippines for 3 reasons: (i) to escape from her abusive husband, (ii) to give her family a better life, and (iii) to have a fresh start. She also explains why the Government and the police in the Philippines will not give her protection, and that internal relocation is out of the question.

8.  In her written submissions dated 13 August 2023, the Applicant repeats what she said in the aforesaid grounds of appeal.

DISCUSSION

9.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

10.  Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.  The Applicant has failed to identify or show any error in the Judge’s decision of 27 July 2023, and has failed to raise any viable ground of appeal against the Order.

12.  The Applicant’s appeal has no merits, and is dismissed.