RE ANGNI NAIMA DIMNATANG

CACV 307/2023, [2025] HKCA 742

On appeal from [2023] HKCFI 2455

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 307 OF 2023

(ON APPEAL FROM HCAL NO. 1473 OF 2019)

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JUDGMENT

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 28 September 2023 ([2023] HKCFI 2455) dismissing her application for leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”) which dismissed her appeal against the decision of the Director of Immigration (“the Director”) rejecting her non‑refoulement protection claim.

2.  The applicant has consented to the appeal being determined by the Court of Appeal on the papers.      

3.  The applicant is a national of the Philippines aged 43.  She entered Hong Kong on 15 January 2016 as a visitor with permission to remain for two weeks.  She did not depart and has since overstayed.  On 1 February 2016 she surrendered to the Immigration Department and raised a non-refoulement claim.  He claim is based on fear of being harmed or killed by the chairman of the local council in Datu Esmael (“Bong”) who has an election dispute with her father.  The basis of her claim to the Director was set out in detail in [6] of the Director’s decision and [4] to [30] of the Board’s decision.  In summary, her claimed risk is based on (1) her witnessing the murder of her father by the people of Bong; (2) the refusal of her family to accept a monetary settlement in return for not pursuing the case against one of the men who killed his father; and (3) there is a reward of 1 million pesos over each of her and her siblings’ heads offered by Bong and the chairman of the village council (“Arco”).    

4.  By a Notice of Decision dated 8 November 2021, the Director rejected the applicant’s non-refoulement claim, having considered the torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4]. 

5.  The applicant’s appeal against the Director’s decision was heard before the Board on 11 January 2019. 

6.  By a decision given on 24 May 2019, the Board dismissed the appeal.  In gist, the Board accepted there was an election dispute between Bong and the applicant’s father that led to the latter’s death and there were threats from Bong to the applicant’s family. The Board, however, found no evidence that Bong had any real intention to seriously harm or kill the applicant, noting that the applicant’s immediate family members had not been harmed.  The Board also found there was no official involvement in the matter.  Further, for the reasons and analysis in [37] to [39], the Board had doubts over the credibility of the rest of the applicant’s case.  The Board did not accept there was a monetary offer to settle the murder of the applicant’s father, or there was a reward for applicant’s or her siblings’ heads.  The Board also found the threat or risk of harm from Bong and Arco obsolete in light of the evidence at the appeal hearing that both of them were no longer in public office and Bong was wanted by the police. The Board considered, on the basis of country-of-origin information, that state protection and internal relocation options were reasonably available to the applicant.  The Board concluded that the applicant failed to establish her entitlement to non-refoulement protection under any of the applicable grounds.

7.  The applicant filed a Form 86 and an affirmation on 30 May 2019 to seek leave to judicially review against the decision of the Board.  She did not provide any grounds to support her application.  The Judge dealt with the application on the papers.  By a Form CALL-1 dated 28 September 2023, he refused to give leave to the applicant to apply for judicial review, holding that the intended judicial review has no prospect of success.  In brief, the Judge took note that the applicant had not put forward any grounds for seeking relief. The Judge also found no error of law or procedural unfairness in the decisions of the Director and the Board, or failure to adhere to the high standards of fairness in the process before the Director and the Board and their consideration and assessment of the applicant’s claim.    

8.  By a notice of appeal filed on 5 October 2023, the applicant sought to appeal the Judge’s decision to this court.  In the grounds of appeal attached to the notice of appeal, the applicant stated that the Director and the Board made many mistakes and she wished the Court of Appeal would grant her leave.    

9.  The applicant has lodged a written submission which contains a summary of the basis of her claim.  It reiterates that the Director and the Board made many mistakes but the Judge found no mistake, and the applicant requests the Court of Appeal to consider her appeal and grant her leave.

10.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In sum, the role of the court in a judicial review is not to provide a further avenue of appeal. Assessment of evidence and Country of Origin Information materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), who are the primary decision makers.  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.  Further, an appeal to the Court of Appeal is not an avenue for the applicant to re-argue the case.  The Court of Appeal will not interfere with the first instance decision unless it is shown that the first instance judge has erred.

11.  As the Judge correctly pointed out, the applicant has not provided any grounds for seeking relief in her Form 86 or the accompanying affirmation.  She has simply failed to show that her intended judicial review has any prospect of success. 

12.  In this appeal, despite asserting that the Director and the Board had made many mistakes, the applicant has not specified the mistakes.  The ground of appeal and the submissions are just mere assertions and do not assist the applicant. 

13.  Further and importantly, the applicant has not pointed to any error in the Judge’s reasoning and decision.  On the legal principles set out above, the appeal is unarguable.  Accordingly, we dismiss the appeal.