EGYAB CONCHITA DAYASEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 67/2024, [2024] HKCA 654

On Appeal From [2024] HKCFI 385

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 67 OF 2024

(ON APPEAL FROM HCAL NO 1174 OF 2019)

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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):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 22 February 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 17 April 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 17 September 2018.

BACKGROUND

2.  The Applicant is a national of the Philippines. She last arrived in Hong Kong as a visitor on 1 August 2009 with permission to remain up to 8 August 2009. She overstayed illegally and was arrested on 13 December 2010. On 17 December 2010, she was convicted of the offence of overstaying and sentenced to two months’ imprisonment, suspended for three years. On 25 December 2010, she raised a torture claim[1], which was later rejected by the Director on 8 July 2013. In the meantime, on 2 July 2013, she lodged a non-refoulement claim, which was assessed on all applicable grounds other than the risk of torture. The Applicant claimed that, if refouled, she would be harmed or killed by (i) the moneylenders in her home country because she failed to repay her debts owed to them, and (ii) her husband because he blamed her for the borrowings she made[2]. Details of the Applicant’s claim have been summarised by the Judge at §§4-5 of the CALL-1 Form.

3.  By a Notice of Decision dated 17 September 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all remaining applicable grounds: BOR 2 risk[3], BOR 3 risk[4], and persecution risk[5].

4.  The Applicant appealed the Director’s Decision to the Board. On 17 April 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §9 of the CALL-1 Form, as follows:

“The Board recapped the [Applicant]’s claim and her personal background [26]-[47]. Having considered the evidence, the Board found that the applicant’s evidence about the loans was vague and inherently inconsistent [51]. In particular, the Board found that she was unable to tell when she incurred the debts; that it was implausible that she could use her parents’ house as security which she had no title over; that her evidence about how she used the loan money was inconsistent and unconvincing; that her inaction in chasing back the loan money she lend to the borrowers was unreasonable; that her new claim of working in the moneylender’s company as a debt collector undermined her credibility; that her evidence about the moneylenders’ conducts was implausible; and that when she first raised grounds for her non-removal she only mentioned the fear of harm from her husband [48]-[59].”

THE JUDGE’S DECISION

5.  On 2 May 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Director’s Decision. No ground for seeking relief was given in the Form 86. In her supporting affirmation, she said that she would like to “appeal, review and reject” the Director’s Decision as it disregarded her dangerous situation. Since the Director’s Decision had been overtaken by the Board’s Decision, the Judge correctly amended the Form 86 so that the Board became the Putative Respondent and the Director became the Putative Interested Party, and treated the Board’s Decision as being the subject matter of the application for leave to apply for judicial review.

6.  On 22 February 2024, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[13] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the [Applicant]’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board…

[14] The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

…

[16] The Board, for the reasons given in paragraph 9 above, had rejected the [Applicant]’s evidence on the facts of her case. She does not have any valid reasons to challenge the Board’s Decision.

[17] The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

[18] The [Applicant] fails to show that she has any realistic prospect of success in her proposed judicial review.”

THIS APPEAL

7.  In her Notice of Appeal filed on 27 February 2024, the Applicant stated the following:

“I am disagree with the decision maker authorities they were totally relied on some web news which is not officially recognized.” [sic]

8.  The Applicant has failed to lodge any written submissions in support of her appeal contrary to the directions given by the Registrar of Civil Appeals on 21 May 2024. Accordingly, she is deemed to have waived the right to have an oral hearing of her appeal and elected to have her appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

DISCUSSION

9.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board or Director’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at §14(6)).

10.  Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.  The Applicant has failed to identify or show any error in the Judge’s decision of 22 February 2024, and has failed to raise any viable ground of appeal against the Order. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

12.  The Applicant’s appeal against the Order has no merit and is dismissed.