RE OXINA JOAN PATRICIO

CACV 301/2020

[2021] HKCA 107

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 301 OF 2020

(ON APPEAL FROM HCAL 2416 OF 2018)

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J U D G M E N T

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

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 22 July 2020 refusing her leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 1663.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 4 October 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 10 August 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  The applicant filed her Notice of Appeal on 27 July 2020 to appeal the Deputy Judge’s Decision.  On the same date, the applicant gave consent to the appeal being heard by a two-member court.

A.  Background

4.  The applicant is a national of the Philippines.  She came to Hong Kong as a foreign domestic helper.  Upon the termination of her employment contract, she was permitted to stay in Hong Kong until 11 February 2016.  She had overstayed since then.  On 12 February 2016, she surrendered to the immigration department and lodged her non-refoulement claim on 25 July 2016.

5.  The details of the applicant’s claim and her personal background were set out in paragraph 8 of the Director’s Decision, and paragraph 35 of the Board’s Decision.

6.  The applicant claimed that she would be harmed or killed by her creditor and her husband if refouled.  The applicant married her husband in 1998.  She came to work in Hong Kong in around 2003 and had been remitting her salary to her husband and son.  However, during her visit back home in 2005, she found out her husband had been womanizing and gambling.  She decided to divorce him but her husband refused and threatened that if she found a boyfriend in Hong Kong he would kill her.  She also claimed to be threatened by her husband’s creditor for repayment of his loan.  Out of fear, she came back and has been staying in Hong Kong for protection.

B.  The Director’s Decision and the Board’s Decision

7.  The Director assessed the BOR3 risk[1], the persecution risk[2], the torture risk[3] and the BOR2 risk[4].  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.  The applicant appealed the Director’s Decision to the Board.  A hearing for the appeal was held on 4 June 2018, during which the applicant confirmed the truthfulness of all the materials in the hearing bundles and answered questions from the Board.  Having considered the oral evidence and the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed her appeal.

9.  The Board reminded itself of the applicable legal principles before reaching the conclusion that the applicant was not a credible witness.  The Board found that the applicant’s failure to file her non-refoulement claim promptly was detrimental to her credibility (paragraphs 22 - 26 of the Board’s Decision).  Further, the Board identified several unexplained inconsistencies and contradictions in the applicant’s evidence on the key events (paragraphs 36 - 38 of the Board’s Decision).  In any event, the Board found that state protection and internal relocation were available to the applicant (paragraphs 44 - 54 and 83 - 87 of the Board’s Decision).  Thus, the Board dismissed her appeal.

C.  The Deputy Judge’s Decision

10.  The applicant filed a Form 86 on 31 October 2018 (dated 23 October 2018) seeking leave to apply for judicial review against the Board’s Decision.  As noted by the Deputy Judge at [11] - [12] of the Deputy Judge’s Decision, the applicant did not advance any grounds of review in either her Form 86 or the supporting affirmation.  After hearing the applicant on 26 September 2019 and considering the materials before him, the Deputy Judge dismissed the applicant’s leave application with reasons set out at paragraphs 13 - 17 of the Deputy Judge’s Decision.  He held that, since the applicant confirmed that she was treated fairly before the Board and that there was no ground of review, the applicant was unable to show any reasonable prospect of success for her intended judicial review.

D.  Grounds for appeal

11.  The applicant’s grounds of appeal in her Notice of Appeal were that:

“The plaintiff will face hardship if he return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news and relied on their own assumption which is not officially recognized, or it is simply hearsay. They have also relied on some cases and on some non-official organization’s report which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” [sic]

12.  Pursuant to Master Tsui’s directions dated 9 November 2020, the applicant filed her skeleton submissions on 17 December 2020.  Her arguments therein could be summarized as these: (a) the Deputy Judge failed to apply the principle of irrationality; (b) the Deputy Judge failed to review the Board’s Decision in light of “high standard of fairness”; (c) the decision has a significant effect on the applicant’s non-refoulement claim; (d) the Deputy Judge failed to apply the principle of procedural unfairness; (e) the Deputy Judge failed to give greater care to the proof submitted by the applicant; (f) the Deputy Judge did not analyse the applicant’s claim properly; (g) the Deputy Judge’s Decision was unreasonable; (h) the Board failed to give sufficient chance to the applicant to arrange evidence; (i) high standard of fairness was required in assessing the applicant’s claim; and (j) the Board relied on outdated source of news.

13.  At the hearing, the applicant confirmed that she had nothing further to add to what have already been set out in the Notice of Appeal and the written submissions.

E.  Discussion

14.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

15.  First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

16.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

17.  Third, 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 the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

18.  In light of the above, 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.

19.  Bearing these principles in mind, we are of the view that this appeal has no merit.

20.  First, the grounds set out in the Notice of Appeal are all related to the Director’s and Board’s Decisions and were in any event not advanced before the Deputy Judge.  As this Court has repeatedly said, in an appeal of this nature, new arguments directed against the Board which have not been canvassed at the Court of First Instance would not generally be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; Re Sudimah [2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O [2019] HKCA 1031 at [13(3)].

21.  Second, all these grounds stated in the Notice of Appeal and the arguments raised in the written submissions are only bare and general assertions not supported by any particularities explaining why and how they applied to the present case.  They are therefore not viable grounds of appeal.

22.  Finally and in any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

F.  Disposition

23.  For all the reasons given above, we dismiss the appeal.