RE ALPAJANDO JOAN HALASAN

CACV 155/2022

[2022] HKCA 1581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 155 OF 2022

(ON APPEAL FROM HCAL NO. 373 OF 2019)

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D E C I S I O N

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

I. The appeal

1.  This is the appeal against the decision of Deputy High Court Judge Bruno Chan (the ‘Judge’)  dated 7 April 2022, where he refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (the ‘Board’)  dated 30 January 2019.  It is noted that the Form 86 mistakenly referred to the Director of Immigration’s (‘the Director’)  decision of 30 January 2019. 

2.  The applicant consents to this appeal being determined on paper without an oral hearing.  This is our judgment.

II.  Background

3.  The applicant is a national of the Philippines.  She entered Hong Kong as a domestic worker on 16 December 2011 but her contract was prematurely terminated on 10 March 2013 as she was arrested by the police for theft.  The applicant was then sentenced to two weeks’ imprisonment on 9 May 2013.  Upon release, she raised her non-refoulement claim on the basis that she would be harmed or killed by the armed political group in the Philippines known as the New People’s Army (‘NPA’).

4.  The background and details of the applicant’s claim have been summarised by the Judge at [1]-[4] of the CALL-1 Form dated 7 April 2022 (published as [2022] HKCFI 1001)  (the ‘CALL-1 Form’).

III.  The Director’s Decision

5.  The Director decided against the applicant’s claim on 14 May 2015.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  of the Bill of Rights (‘BOR 3’), as well as her other statutory and convention rights against torture and persecution.

6.  The Director on 18 May 2017 invited the applicant to submit further materials on all applicable grounds for non-refoulement protection.  The Director decided against the applicant’s right to life claim on 6 June 2017, which covered Article 2 (right to life)  of the Bill of Rights (‘BOR 2’).

IV.  The Board’s Decision

7.  The applicant appealed against the Director’s Decisions to the Board.  An oral hearing was held on 8 October 2018.  On 30 January 2019, the Board dismissed the applicant’s appeal and affirmed the Director’s two decisions.

8.  Whilst the Board accepted the applicant’s account of events, it rejected the applicant’s claim that she would suffer a genuine and substantial risk of harm from the NPA.  In view of the country of origin information, the Board further held that there is adequate state protection for the applicant in the Philippines.  Lastly, the Board was of the view that internal relocation was a feasible option for the applicant. 

V.  The Judge’s Decision

9.  As set out in [10] to [14] of the CALL-1 Form, the Judge did not find any error of law or procedural unfairness in the decisions of the Director and the Board, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  The Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review, and he dismissed the applicant’s leave application.

VI.  The present appeal

10.  The applicant filed a notice of appeal on 21 April 2022.  In her notice of appeal, she stated that :

‘ I would like to reject and review the decision made by the court. They disregard my dangerous situation.’

11.  As for the applicant’s written submissions filed on 5 May 2022, she referred to various websites regarding human rights issues in the Philippines.

VII.   Our view

12.  We will repeat the approach of this Court in dealing with cases of this nature :

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 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 their decisions.

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 and rejected by the judge.  In the determination for 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 made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.

3)  In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

13.  In our view, there is no merit in the applicant’s appeal.  The Judge had duly considered the decisions of the Director and of the Board, and had provided proper reasons for refusing the application.  The applicant has not provided any proper ground for her appeal in the notice of appeal nor in the written submissions. 

14.  We see no error in the Judge’s decision.  Accordingly, the appeal is dismissed.