RE PEPITO DYESEBEL LEOPOLDO

CACV 219/2020

[2021] HKCA 975

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 219 OF 2020

(ON APPEAL FROM HCAL NO. 2945 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

The Court:

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung given on 16 June 2020 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”)  dated 14 December 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 9 February 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines.  She entered Hong Kong on 11 March 2015 to work as a foreign domestic helper.  She overstayed and surrendered to the authorities on 6 October 2016.  She lodged a non-refoulement claim on 23 February 2017. 

3.  The applicant’s claim was based on threats from a neighbour of her mother-in-law, known as Gadiane.  According to the applicant, she witnessed a murder committed by Gadiane.  The details of the applicant’s claim have been summarised by the judge at [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 9 February 2018 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 20 November 2018, the Board dismissed the appeal on 14 December 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [37] of the Board’s Decision, the Board found that major parts of the applicant’s claim, namely her witnessing a murder and the threats of the alleged murderer, were fabricated.  The Board held at [38] that there was insufficient evidence to show a real risk of harm to the applicant upon her return.

The Judge’s decision

7.  The applicant filed a Form 86 on 21 December 2018 which contained no ground for seeking relief.

8.  In exhibit A to her affidavit in support of the leave application dated 21 December 2018, the applicant deposed that:

“Following [the Board’s Decision], I would like to express that the decision has ignored the danger that awaits me considering the circumstances which compelled me to flee to Hong Kong. As I have already mentioned in my previous interviews with Immigration Appeal Board.

The decision by the Hong Kong Immigration Appeal Board has only relied on foreign researcher’s findings, which mainly focus on only the good side of the country of origin’s report instead of the real facts in Philippines which reports the real situations about the country.  There are growing concerns about insecurity and corruption system which indicates that there is insecurity situation regarding Philippines vigilante killings and contract killers as well, not Considering the above challenges facing the Philippines, there is no security guarantee if I am forced back to my country of origin.  There is another rising worrisome with regards to jungle justice cases in Philippines all these is as a result of inadequate police personnel to quickly intervene.  On the other hand, corruption and other contract killing through the influence of politicians have increased fear and panic across Philippines.  To demonstrate my fear and other uncertainties on the part of the insecurity regarding my life, I have therefore attached various local newspapers in support of my appeal for further consideration.”

9.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

10.  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 [14] to [18] of the CALL-1 Form:

“14. As the Board did not accept her evidence, she has no factual basis in support of her claim and her claim will fail.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.  (1)  … …Assessment of evidence and COI 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.”

16. There is nothing to show that the Board had committed any error in its finding of the facts or its application of the law to her case.

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

CONCLUSION

18. 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.”

Grounds for appeal

11.  In the Notice of Appeal dated 24 June 2020 the applicant contended that:

(1)  The Board ignored the facts relied upon by the applicant but instead relied on the report by the government of the Philippines;

(2)  The applicant will face danger to her life upon her return.  The Board failed to properly evaluate the evidence but instead based their decision on their own perception from the sources of information which are always inclined towards dismissing the appeal;

(3)  The Board’s Decision did not explain how her safety in the Philippines can be guaranteed;

(4)  The Board dismissed all her submissions in relation to her family relationship; and

(5)  The Board and the Director failed to deal with her claim fairly.

12.  The applicant failed to comply with the direction made by this Court on 25 September 2020 requiring her to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

13.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing. Nowadays, this court no longer permits unfocused oral presentation of material at an oral hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

14.  The hearing date on 15 December 2020 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on paper on the basis of the materials already filed with the Court.

Discussion

15.  We have considered the grounds for judicial review and the grounds of appeal advanced by the applicant.  The primary complaint by the applicant in those grounds was that the Board failed to properly assess the adequacy of state protection in the Philippines and the risk of harm to the applicant upon her return.  No complaint was made about the Judge’s decision, and there is therefore no proper ground of appeal.  In any event, the criticisms of the Board are not well founded, for the reasons explained below.

16.  The Board summarized the applicant’s claim under two headings, namely the alleged witnessing of a murder by the applicant on 8 March 2015 ([16(d)  – (i)  of the Board’s Decision])  and the letter threatening to kill her issued by the alleged murderer ([16(j)  – (l)].  The Board referred to the applicant’s testimony in the hearing and identified discrepancies between her oral testimony and the written statements in [24] – [36] of the Board’s Decision.  The Board held at [37] that there was insufficient evidence to establish the witnessing of a murder by the applicant or the threat from the alleged murderer.  The Board held at [38] that there was insufficient evidence to establish any real risk of harm to the applicant upon her return to the Philippines.

17.  None of the grounds relied on by the applicant addressed the assessment of the applicant’s credibility by the Board.  Having considered the Board’s Decision carefully, we cannot see any public law error in the Board’s Decision.  There is therefore no ground for disturbing the Board’s assessment of the applicant’s credibility.

18.  We are of the view that the intended application for judicial review is entirely without merit and no leave should be granted.  We would therefore dismiss the appeal.