SAGAO LEAH REYNON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 205/2024, [2024] HKCA 809

On appeal from [2024] HKCFI 1166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 205 OF 2024

(ON APPEAL FROM HCAL NO 242 OF 2024)

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J U D G M E N T

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

1.  On 14 May 2024, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 24 May 2024.

2.  The applicant is a national of the Philippines. She last entered Hong Kong to work as a domestic helper on 6 September 2019. Her employment contract was pre-maturely terminated on 15 January 2020 and she subsequently overstayed. She was arrested by the Immigration Department on 20 February 2023 and lodged her non-refoulement claim on 26 February 2023. Her claim was made on the basis that, if refouled, she would be killed by two moneylenders.

The decision of the Director

3.  By a Notice of Decision dated 24 April 2023, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.  The Director assessed that the level of risk of harm upon the applicant’s return to her home country is low, as the moneylenders had only made verbal threats without any follow-up actions and the alleged problem originated from a private matter which involved no influence or connection with the authorities in the Philippines. The Director further found that state protection and internal relocation options are available to the applicant in the Philippines, which further lower or negate any perceived risk.

The decision of the Board

5.  The applicant attended the hearing of the appeal against the Director’s decision before the Board on 30 August 2023. The Board considered that her fear of being killed by the moneylenders is unlikely to be materialize. It was found that the moneylenders did not have any intention to carry out their verbal threats and there is insufficient evidence to show that they would be able to track the applicant down outside their hometown. The Board also held that the applicant’s alleged fear is attributed to private dispute and is not on account of race, religion, nationality, membership of a particular social group or political opinion. The Board further found that the moneylenders’ influence and connections are restricted to the local village where they live and it is not unduly harsh for the applicant to relocate in the Philippines to avoid the alleged risk. Thus, the Board held that the applicant’s appeal fails on all applicable grounds and dismissed her appeal on 30 November 2023.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 29 January 2024 to seek leave to apply for judicial review against the decision of the Board. She reiterated the problems she faced from the moneylenders in the Philippines in her written submissions and attached two demand letters purportedly issued by the attorney-at-law for the moneylenders dated 28 March 2023. However, she did not put forward any specific ground for her intended challenge against the Board’s decision.

The judge’s decision

7.  The applicant attended the hearing of the leave application on 10 April 2024 before DHCJ Lung. She submitted that the Board was wrong for not believing her evidence. The judge found her submissions and supporting documents are not valid to challenge the Board’s decision. The judge considered that the demand letters showed that the moneylenders adopted lawful means to demand payment from the applicant. He also held that the applicant does not have real risk of harm from her creditors and the Board was entitled to form its view. As the applicant did not have any realistic prospect of success in her proposed judicial review, the judge refused the leave application on 14 May 2024.

Grounds of appeal

8.  The applicant’s grounds of appeal in the Notice of Appeal and written submissions may be summarized as follows:

(1)  Her life will be in danger if she returns to her home country. She suffered from mental torture and emotional anxiety. Article 33(1) of the Refugee Convention provides that no contracting state shall expel or return a refugee in any manner whatsoever to “the frontiers of a risk state”.

(2)  The police and the government may not be able to protect her.

(3)  She could not relocate to other places as she has no other relatives or friends who could support her.

9.  The applicant has lodged a written consent to the disposal of this appeal on paper without an oral hearing.

Legal principles

10.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

11.  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 issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information materials and 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.

12.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

13.  In support of the present application, the applicant submitted two documents, which appear to be statements in the Filipino language purportedly made by the applicant’s father Orlando R Renon dated 23 November 2023 and 28 March 2024 claiming that he is scared and that the creditors do not stop threatening the life of his daughter. However, the applicant has not applied for leave to adduce new evidence in this appeal. Nor did she explain why she could not adduce such evidence before the hearing at the Court of First Instance with the exercise of reasonable diligence. Under these circumstances, the applicant is not entitled to adduce further evidence in this appeal.

14.  In any event, even if the Court of Appeal were to consider the new evidence on a de bene esse basis, the self-serving statements made by the applicant’s father do not constitute sufficient and reliable evidence to refute the Board’s findings.

15.  The applicant relies on Article 33(1) of the 1951 Refugee Convention which provides as follows:

“No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

16.  The applicant’s evidence fails to show that her life or freedom would be threatened on account of her race, religion, nationality, membership of a particular social group or political opinion. Her evidence also fails to refute the findings of the Board.

17.  In summary, the applicant’s grounds are not supported by sufficient evidence and she failed to identify any or any material error that undermines the judge’s decision.

18.  For the above reasons, the applicant’s grounds of appeal are devoid of merit. We therefore dismiss her appeal.