RE DIANTAN TERESITA GRACIA

CACV 396/2020

[2021] HKCA 148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 396 OF 2020

(ON APPEAL FROM HCAL 309/2018)

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J U D G M E N T

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

1.  This is an appeal against the decision of Campbell-Moffat J given on 12 August 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 22 February 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 15 February 2016 and 19 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines.  She entered Hong Kong in 1991 to work as a foreign domestic helper.  She overstayed after her contract was terminated prematurely.  She was arrested on 15 May 2009.  She lodged a torture claim which was dismissed by the Director on 16 November 2012.  The applicant did not appeal against that decision.

3.  On 27 September 2013, the applicant made a claim for non-refoulement protection against BOR 3 risk[1]. The applicant’s claim was based on threats from a moneylender in the Philippines.  The details of the applicant’s claim have been summarised by the judge at [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 15 February 2016 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR3 risk and the persecution risk[2].

5.  By a Notice of Further Decision dated 19 June 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[3], and decided against her.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 15 September 2017, the Board dismissed the appeal on 22 February 2018 (“Board’s Decision”).

7.  At [53] of the Board’s Decision, the Board found that the applicant is unlikely to be subject to persecution risks, BOR3 risk or BOR2 risk upon her return.  The Board was also satisfied at [59] that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 and a supporting affidavit on 27 February 2018.  The applicant did not give any ground for seeking relief.

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 [10] to [12] of the CALL-1 Form:

“10.  There were no grounds of review. The applicant seeks a re-hearing of her appeal. She has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of her intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11.  Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. The applicant’s case was wholly without merit. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state her case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

12.  In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave.  I therefore refuse leave for judicial review.”

Grounds for appeal

11.  In the Notice of Appeal dated 20 August 2020, the applicant contended that:

“1.  Failure to consider the Country of Origin conditions into my country condition or (COI) information.

2.  Failure to consider my fear, that I would be face real risk upon refoulement to my country.

3.  Failure to consider my claim under BOR3 risk that my life still at risk upon refoulement.”

12.  In her skeleton submissions dated 11 January 2021, the applicant submitted that:

(1)  the Board and the Director failed to inquire into the country of origin condition and adopted a passive approach. They therefore failed to meet the high standards of fairness; and

(2)  The Board and the Director failed to take into account relevant consideration and they took into account irrelevant consideration, particularly:

(a)  the danger to her life upon her return; and

(b)  the mental distress she suffered as a result of the difficulty she will face upon return to the Philippines.

13.  The applicant agreed by a letter of 20 August 2020 that the appeal could be heard by two judges.  We heard the appeal on 1 February 2021.

Discussion

14.  None of the grounds advanced in this appeal had been raised by the applicant as a ground for judicial review before the court below.  It is thus not open to the applicant to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)). 

15.  Further, the grounds mentioned in the written submission consist only of complaints against the Director and the Board, and do not suggest any error on the part of the judge.  As for the grounds of appeal in the Notice of Appeal, it is not clear whether these grounds are directed to the Director, the Board or the judgment by the judge.  It would seem to us that they are likely to be directed against the Director and the Board, given the way the arguments are put in the written submission.  But even if they were directed at the judge’s decision, they would not be open to the applicant at this stage given her failure to raise these arguments in the court below.

16.  As this court has repeatedly held, an application for judicial review is not a further appeal against the decision of the Board.  The role of the court in an application for judicial review is not to reconsider the factual findings made by the Board, which together with the Director are the primary fact finders. The court is only entitled to interfere on public law grounds, such as error of law and procedural unfairness.  No such grounds were identified before the judge. On appeal, the focus is on the decision of the judge, and it is necessary for an applicant to identify errors in the judgment below.  No such errors have been identified here.

17.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.