FRANCIA NERRY VELASCO v. TORTURE CLAIMS APPEAL BOARD

CACV 205/2021

[2021] HKCA 1175

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 205 OF 2021

(ON APPEAL FROM HCAL NO 2116 OF 2018)

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J U D G M E N T

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

Introduction

1.  On 12 November 2020, DHCJ Bruno Chan (“the Judge”)  refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 26 September 2018 and dismissed the leave application.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  dated 31 May 2017 rejecting the applicant’s non-refoulement claim.

2.  On 30 April 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.

Background

3.  The Applicant is a Filipino national.  She last arrived in Hong Kong on 13 June 2014 with the intention of continuing her then employment contract as a foreign domestic helper, but her employment contract was terminated and she was only allowed to stay as a visitor until 27 June 2014.  She overstayed and surrendered herself to the Immigration Department on 18 October 2016, and subsequently raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by Jayvee Pilapil (“JP”), the mayor’s son of her home district, for having witnessed JP’s rape of her friend on 10 March 2007.

4.  By a Notice of Decision dated 31 May 2017, the Director rejected the applicant’s claim on all applicable grounds based on BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and torture risk[4].

5.  The applicant appealed the Director’s decision to the Board.  She attended a hearing before the Board on 21 August 2018.  By its decision dated 26 September 2018, the Board accepted the applicant’s claim that she witnessed the rape of her friend by JP, but rejected her claims that JP subsequently murdered her friend and also her boyfriend as being nothing more than speculation.  After due consideration of the applicant’s evidence (including the fact that she delayed in lodging her non-refoulement claim until 2016 although she first came to Hong Kong to work as a foreign domestic helper in 2007), the Board was not satisfied that the applicant faced a real risk of harm of any kind from JP or his family or associates now or in the reasonably foreseeable future if she returned to the Philippines.  Having made that finding, the Board did not consider it necessary to consider the question of state protection or internal relocation which were additional grounds relied upon by the Director to reject the applicant’s non-refoulement claim[5]. Accordingly, the Board rejected the applicant’s non-refoulement claim on all applicable grounds, dismissed her appeal and confirmed the Director’s decision.

Decision of the court below

6.  On 4 October 2018, the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision.  In the Form 86, she advanced the following grounds of intended challenge (as set out by the Judge at [10] of the Form Call-1):

“(1)  Misdirection in law in taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2)  Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of her claim;

(3)  Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of her claim;

(4)  Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in the Philippines;

(5)  Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in the Philippines and misdirected himself as to the extended meaning of state protection;

(6)  Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7)  Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8)  Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision; and

(9)  Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.”

7.  The applicant attended an oral hearing before the Judge on 16 September 2020.  By his decision dated 12 November 2020, the Judge refused the application for leave to apply for judicial review.  The reasons for the refusal were set out at [11] – [16] of the Form CALL-1 as follows:

“11. All these however appear to me just standard pro forma grounds commonly used in this type of applications which are wholly irrelevant to the Applicant’s case, or are just broad and vague assertions of hers containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in her case, or in what way was her legal representation from her assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. As such and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal.

14. Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing she never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.

15. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

8.  On 23 March 2021 and 28 April 2021, the Judge granted extensions of time for the applicant to appeal to this court.

The present appeal

9.  On 30 April 2021, the applicant filed her Notice of Appeal against the Judge’s decision of 12 November 2020, advancing the following ground of appeal:

“The High Court refused my leave to apply for judicial review but he failed to show any good reason.”

10.  On 23 July 2021, the applicant lodged her written submissions in support of the present appeal.  In the written submissions, she stated she had a “life and death question” in her country, and her enemy was strong and intended to kill her.  She also complained that the Judge had failed to assess her claim and just followed the Board’s decision.   

11.  At the hearing, the Applicant had nothing to add.  

Legal principles

12.  In considering this appeal, we apply the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  The salient principles are as follows:

(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 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 the decision of the Board.

(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 or for running arguments which could and should have been raised but not raised before the judge.  In the determination of 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 refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

13.  It has repeatedly been emphasised by this Court that the role of the court in a judicial review of a decision of the Board is not to provide a further avenue of appeal but to review the Board’s decision in light of the grounds of challenge raised by the applicant, and the court would only intervene on valid public law grounds.  Here, the Board dismissed the applicant’s appeal as it was not satisfied that JP had any intention to harm or kill her, or that she would face any real risk of harm upon her return to the Philippines.  It was open for the Board to reach its findings and conclusions which, in our view, are reasonable and fully justified.

14.  The applicant did not in her notice of appeal or submissions raise any or any proper ground of appeal, or identify any specific errors in the Judge’s decision, or any specific potential grounds for reversing the Judge’s decision.  She advanced a general accusation that the Judge failed to assess her claim and merely followed the Board’s decision.  It is clear from the Judge’s decision that he had considered the applicant’s claim and the Board’s decision, and came to the view that “in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant”, he did not find any of the applicant’s grounds of intended challenge of the Board’s decision to be reasonably arguable[6].  We consider that it was open to the Judge to come to that view.

15.  In passing, we note that the Judge seemed to have thought that both the Director and the Board considered that the risk of harm was a localised one and that it was not unreasonable or unsafe for her to relocate to another part of the Philippines, and thus there was no justification to afford her with non-refoulement protection[7]. As earlier noted, although the Director did rely on state protection and internal relocation as additional grounds to reject the applicant’s non-refoulement claim, the Board took the view that it was not necessary to consider those grounds in view of its finding that the applicant did not face a real risk of serious harm at the hands of JP or his family or associates if she were to return to the Philippines.  This error of the Judge does not, in our view, affect his earlier conclusion that the Applicant’s intended grounds of challenge to the decision of the Board were not reasonably arguable.  As earlier mentioned, we have also come to the view that the Board’s decision is reasonable and justified.  In the circumstances, there is no useful purpose to be served in setting aside the Judge’s decision and remitting the Applicant’s application for leave to apply for judicial review for fresh consideration by another judge at first instance.

Order

16.  For the above reasons, this appeal is dismissed.