RE DIOCARES MARILOU BANGSOY

CACV 39/2023, [2024] HKCA 176

On Appeal From [2022] HKCFI 3395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 39 OF 2023

(ON APPEAL FROM HCAL NO. 2504 OF 2018)

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J U D G M E N T

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

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge K W Lung of 14 November 2022 in which he refused to grant leave to her to apply for judicial review.

2.  By written confirmation of the applicant dated 10 February 2023, the applicant consented to this appeal being dealt with on paper.  The applicant lodged skeleton argument by the stipulated time as per directions of the Registrar of Civil Appeals dated 10 February 2023.  However, on 22 May 2023, the applicant lodged a further skeleton argument without the leave of the Court.  Pursuant to [5] of the directions of the Registrar of Civil Appeals dated 10 February 2023, no further document or submission shall be lodged without leave of the court, and document or submission lodged in non-compliance will not be considered.  We would deal with this appeal on paper without regard to the applicant’s 22 May 2023 skeleton argument. 

2)  Background

3.  The applicant is a national of the Philippines.  The applicant last arrived in Hong Kong on 2 November 2016 as a visitor but she overstayed.  She then made a non-refoulement claim on 8 March 2017.

4.  The basis of the applicant’s claim is that she would be harmed or killed by her paternal uncle, Solomon Bangsoy, upon her return to the Philippines.  The uncle stood as a guarantor of a loan borrowed by the applicant from the bank.  He used the title deed of his land as security.  The applicant failed to repay the loan and the bank was about to claim the uncle’s land.  The uncle came to the applicant’s house and assaulted her because of what had happened.  The uncle was said to be a member of the New People’s Army but nobody in the applicant’s village knew for sure if he was a member.

5.  The background facts have been summarized in the decision of the Judge at [6].

3)  The Director’s Decision

6.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 27 February 2018.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (right to life) risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 22 June 2018, the Board dismissed the applicant’s appeal on 5 November 2018 (‘the Board’s Decision’).

8.  The Board accepted the applicant’s story on the loan and the assault by the uncle.  For the torture risk, the Board found that Solomon is not a public official and will remain a private individual.  The Board found that the Philippines has a reasonable legal system to protect its citizen.  The Board found that there are no substantial grounds for believing that the Philippines police would withhold protecting the applicant.  The Board found that therefore, the risk of harm from the applicant’s uncle does not come within the definition of torture.  For BOR 3 risk, the Board found that there is a small although a real risk that the applicant would suffer mistreatment from Solomon if she returns, however, the Board has come to the view that this risk is remote and far-fetched if the applicant was to relocate to another area outside of her hometown that is within the Philippines.  For persecution risk, the Board found that the reason Solomon might want to harm the applicant was for personal reasons and not because of the applicant’s race, religion, nationality, political opinion or membership of a particular social group.  For BOR 2 risk, the Board found that the situation in the Philippines is not so dire as to deprive the applicant’s right to life.

5)  Decision of the Judge

9.  The applicant filed her Form 86 and simply stated that she wished to reject and review the Director’s decision.  In her supporting affirmation, the same was repeated and she further stated the Director disregarded her dangerous situation. 

10.  The Judge held on 14 November 2022 there were no valid grounds by the applicant to challenge the Board’s decision.  There was no reasonably arguable basis to challenge the Board’s decision.

11.  Later on 30 December 2022, the applicant by summons and affirmation applied for extension of time to appeal as she did not receive the Court’s Form CALL‑1 within 14 days of 14 November 2022.

12.  In his decision of 30 January 2023, the Judge held that according to Court record, the Court’s decision was resent to the applicant on 22 December 2022.  The Judge granted extension of time to the applicant to file her notice of appeal.

6)  Grounds of appeal

13.  The applicant in the notice of appeal stated that :

‘ The Court does not find any error of law or procedural unfairness in the Board decision. I want to show some realistic prospect of success in my appeal.’

14.  In the applicant’s written submission, she stated the factual background of her case.  She stated that Solomon was an active worker of the (New) People’s Army. She stated that all her story is true but the Immigration officer dismissed her claim.  She stated that the High Court did not extend time for her appeal, which is factually incorrect.  She stated that the system in Hong Kong will never stop the asylum problem.

7)  Our view

15.  We are of the view that the applicant’s grounds of appeal consist of bare allegations without particulars or specifics.  The appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

16.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.  None of the arguments raised by the applicant shows the Deputy Judge has made any error of law.

17.  We see no basis to disturb the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.