RE AQUINO ESMINIA RAMENTO

CACV 282/2020

[2021] HKCA 417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 282 OF 2020

(ON APPEAL FROM HCAL 402/2018)

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J U D G M E N T

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Hon Yau J (giving the Judgment of the Court):

Introduction

1.  On 6 July 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 28 February 2018.  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 22 July 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a Philippine national.  She arrived in Hong Kong in 2001 and was employed as a foreign domestic helper until 27 October 2015 when she completed her last contract. She did not depart and overstayed.  She surrendered to the Immigration Department on 23 November 2015 and lodged her non-refoulement claim on 11 May 2016. 

4.  The applicant’s claim was based on the fear that, if she returned to the Philippines, she would be harmed or even killed by her husband who had accused her of having a boyfriend in Hong Kong.  The factual background was succinctly summarized by the Judge at [2] – [3] of the Form CALL-1 ([2020] HKCFI 793). 

5.  The applicable grounds of the applicant’s claim are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4]. The Director assessed all these grounds, and by notice of decision dated 31 May 2017 refused her application. 

6.  The applicant appealed to the Board against the Director’s decision.  A hearing was held on 23 February 2018, during which the applicant was interviewed by the Board.  At the hearing, the Board confirmed with the applicant that her husband had only made one verbal threat to her over the telephone on 26 October 2015, that there was no significant history of violence by him, that he had left home, that neither she nor her family had heard from him since, and that his whereabouts were unknown.

7.  On the strength of those facts, the Board concluded that there was no real risk of harm to the applicant in the event of refoulement.  The Board dismissed the applicant’s appeal on all the applicable grounds on 28 February 2018. 

Decision of the court below

8.  On 12 March 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  In her affirmation of the same date filed in support, she set out her grounds for relief which were summarized by the Judge at [8] of his judgment in the Form CALL-1. 

9.  Upon consideration of the documents only, the Judge on 6 July 2020 refused to grant leave to apply for judicial review.  The grounds of relief of the applicant as well as the Judge’s reasons for the refusal were set out at [8] – [17] of the Form CALL-1 as follows:

“8.  On 12 March 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affidavit of the same date she put forward the following grounds as summarized for her intended challenge:

(1)  that the adjudicator failed to meet the high standards of procedural fairness required of the tribunal in failing to provide representation for the Applicant at her oral hearing before the Board;

(2)  that the adjudicator failed to apply high standards of fairness by taking account of irrelevant considerations in assessing the Applicant’s claim rendering a refusal decision;

(3)  that the adjudicator gave no proper reasons for his decision after citing only the history of the matter and the materials available before him;

(4)  that the adjudicator failed to take account of all the COI material in the hearing bundle in his determination of the Applicant’s claim; and

(5)  that the adjudicator did a shoddy job, was intentionally rude and inconsiderate, and failed miserably.

9.  These are however just broad and vague assertions of the Applicant 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 apply high standards of fairness in his assessment of her claim, or how did the adjudicator fail to take into account relevant COI in his determination of her claim or being intentional rude and inconsiderate towards her at her hearing before the Board. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.

10.  As for her complaint of not being provided with legal representation for her appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176.

11.  The Applicant already had the benefit of legal representation in presenting her case to the Director, and was able to give evidence and answer to questions raised of her claim from the adjudicator during her oral hearing before the Board without any difficulty or problem. Given the straightforward facts and nature of her claim, and in the absence of any evidence to suggest that her case had been misunderstood or misjudged by the adjudicator, I do not find this ground reasonably arguable for her intended challenge.

12.  Regarding her complaint of the adjudicator’s failure to give proper reason for his decision other than just citing the history of her case and the materials before the Board, it is plainly incorrect for the Applicant to so claim, as the adjudicator did clearly in paragraphs 37 – 62 of his decision fully and properly explain his findings and reasons for his decision, and a careful examination thereof discloses no error in his such findings. As such I do not find any basis or merit in this complaint of the Applicant either.

13.  As a matter of fact, the Applicant did agree as much in paragraph 8 of her affidavit:

“…The adjudicator handed down his written decision on 28 February 2018, in which he provides a very comprehensive and considered analysis of the information and issues before him.  He correctly sets out the relevant rules and principles that he was to apply in determining the applicant’s claim…”

14.  Her complaint that her account of her experiences and concerns did not feature in the adjudicator’s analysis that they did not amount to torture is clearly wrong given what she had told the adjudicator during her oral hearing about the husband’s threats as recorded in paragraphs 26 – 34 of the decision, upon which the adjudicator clearly went on to properly analyze them before arriving at his conclusion, and of which I do not find any fault at all.

15.  As has been repeatedly emphasized by the Court of Appeal, 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 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.

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

17.  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.”

Appeal to this Court

10.  On 22 July 2020, the applicant filed her Notice of Appeal against the Judge’s decision.  Her grounds of appeal awee that the Judge erred in concluding that there had been no failure of the Board to adhere to the high standard of fairness required by the law.  It was also the complaint of the applicant that the Board had failed to ask her to elaborate her case during the hearing, thus failing to make sufficient enquiry before coming to its decision, particularly in its conclusion that her grounds for judicial review had been broad and vague.  She also reiterated the grounds for her intended judicial review. 

11.  Pursuant to the Court’s directions of 25 January 2021, the applicant lodged her written submissions on appeal on 22 February 2021. 

12.  In those submissions, the applicant reiterated her fears of torture and harm in the event of refoulement, stating that the Philippines was a lawless country.  It was also her argument that the Judge had failed to consider and analyse her grounds of application.  In the rest of her submissions she repeated in essence her grounds for seeking leave for judicial review which the Judge had rejected. 

13.  The applicant, however, did not provide any details or particulars in support of her arguments or as to how the Judge specifically erred. 

14.  The applicant appears in person during the appeal hearing and has nothing to add to her written submissions. 

Legal principles

15.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see 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].  For the purpose of this appeal, 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.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). 

Discussion

16.  As mentioned earlier, the applicant did not in her Notice of Appeal or submissions provide any particulars in support of her arguments, including how the Judge had erred in failing to consider and analyse her grounds of application, or any other specific potential grounds for reversing the Judge’s decision.  She also does not do so during the appeal hearing. 

17.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244. 

18.  The allegation of the applicant that the Board failed to make sufficient enquiry regarding her grounds of application is totally unfounded.  Judging from the detailed manner in which the background of the applicant, her relationship with her husband as well as her fear of being harmed or killed by her husband were set out in the decision of the Board, the applicant must have been allowed to address the Board fully on every aspect of her case and the Board had made sufficient enquiry about the applicant’s appeal to the Board as required by the law. 

19.  We would only examine the Judge’s decision in light of the grounds advanced by the applicant in determining whether to reverse the decision.  As there appears to be no such grounds that point to any error by the Judge, the appeal should be dismissed. 

20.  In the present case, the Board seemed to have accepted the applicant’s factual account that there had only been one verbal threat from her husband in October 2015 over the telephone with no significant history of violence by him.  It was also the finding of the Board that the husband had already left home and that neither she nor her family had since heard from him or were aware of his whereabouts.  The Board was thus of the view that internal relocation was viable and that there was no real risk of harm to the applicant in the event of refoulement.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

21.  The applicant has not advanced any valid public law grounds. 

22.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified. The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge. 

23.  For these reasons, this appeal is dismissed.