ABAYON MARIEL MAGDARAOG v. TORTURE CLAIMS APPEAL BOARD

CACV 174/2024, [2024] HKCA 929

On Appeal From [2024] HKCFI 1088

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 174 OF 2024

(ON APPEAL FROM HCAL NO 356 OF 2024)

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JUDGMENT

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Hon B Fung J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 23 April 2024[1] refusing 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 (“Board”) dated 15 January 2024.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 25 October 2023 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines born in 1989.  She first arrived in Hong Kong in 2017 to work as a foreign domestic helper.  The applicant last entered Hong Kong on a foreign domestic helper visa on 22 March 2018 and was last approved to remain in Hong Kong as a foreign domestic helper until 1 September 2023 or 2 weeks after termination of employment contract, whichever was earlier.  Her employment contract was prematurely terminated on 3 September 2022.  On 13 September 2022, the applicant submitted an application to work as a foreign domestic helper to the Immigration Department.  She was subsequently arrested by the police for overstaying on 6 August 2023.  She was later sentenced to imprisonment on 10 August 2023 for making a false representation by way of submitting a false employment contract for engagement as a foreign domestic helper in her latest application to the Immigration Department.  On 11 August 2023, the applicant lodged her non-refoulement claim by way of written signification.  Her claim was made on the basis that if she returned to the Philippines, her boyfriend (Jeff Sauro) would harm or kill her due to their domestic disputes.  The factual background of the applicant’s claim was set out at [4] and [12] to [35] of the Board’s decision.

3.  By notice of decision dated 25 October 2023, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against her.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] 

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 9 January 2024, during which the applicant did not give further evidence for the appeal, but she did answer questions raised by the Board.  The oral hearing was held through video conferencing system linked up to Castle Peak Bay Immigration Centre, where the applicant was detained.  The Board found her claims to be inconsistent and questionable in, inter alia, when she moved in with her boyfriend, the claimed violence from her boyfriend, and how she claimed that she did not allow her boyfriend (who was the natural father) to visit their daughter but at the same time claimed that her boyfriend would visit their daughter when he did not have to work.  Therefore, the Board did not find her evidence to be credible and so it was unable to attached any weight to her evidence that she was threatened or assaulted by her boyfriend in the Philippines.       

5.  The Board proceeded to consider the risk of harm faced by the applicant if she was refouled to the Philippines.  It found there was in fact no real risk of harm if the applicant returned to the Philippines because it did not accept that she had been threatened or assaulted by her boyfriend on the totality of her evidence.  As the applicant has failed to establish a real risk of persecution in her home area, the Board considered that the question of internal relocation did not arise.   

6.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to the Philippines.  By its written decision dated 15 January 2024, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.  On 21 February 2024, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  She did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, she simply stated that her life was in danger and annexed the Board’s decision.

8.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 23 April 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [10] to [14] of the Form CALL-1 as follows:

“ 10. On 21 February 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in her Form or her supporting affirmation of the same date in which she just repeated her claim of fear of harm from her former boyfriend as before but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality 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 reasonably arguable basis for her intended challenge.

11. 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.

12. In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real 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.

13. 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.

14. In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I refuse to grant leave and accordingly dismiss her leave application.”

Appeal to this Court

9.  On 6 May 2024, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were that the Judge failed to consider the facts raised in her claim that she would not be safe in her own country, that the Board and the Director failed to properly assess her claim, and that the Board and the Director failed to consider the facts that supported her claims under BOR2 and BOR3 risks.   

10.  As the applicant did not lodge any written submissions, the scheduled hearing of her appeal was vacated pursuant to the directions of the Court.  As such, we shall accordingly determine the appeal on the basis of the available documents and materials.

Discussion

11.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in 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].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

12.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged because it did not accept the basis of the applicant’s claim.  Therefore, the Board concluded that it was not necessary to consider or make further findings in relation to internal relocation.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.  As for the grounds advanced in the notice of appeal, they consist of mere general and bald assertions regarding the decision of the Director and the Board without any particulars.  They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

13.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

14.  The applicant’s appeal is accordingly dismissed.

[1]  [2024] HKCFI 1088. 

[2]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[3]  This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[5]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).