RE MANUEL TRINIDAD AGUILAN

CACV 529/2021

[2022] HKCA 650

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 529 OF 2021

(ON APPEAL FROM HCAL NO. 2205 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court)  :

1)  The appeal

1.  This is an appeal against the decision dated 23 November 2021 of Deputy High Court Judge P. Li who refused to grant leave to the applicant to apply for judicial review against the decisions of the Torture Claims Appeal Board (‘the Board’)  of 23 February 2017 (‘Board’s First Decision’)  and 9 August 2018 (‘Board’s Second Decision’).

2)  Background

2.  The applicant is a national of the Philippines.  She entered Hong Kong as a domestic helper but her contract was prematurely terminated in 2000 and she overstayed.  She raised a non-refoulement claim in March 2014 on the basis that if she returned home she would be harmed or killed by her brothers Daniel and Leonardo or her former partner, Mario, for becoming a Muslim.

3.  The details of the applicant’s claim have been summarized by the Judge at [2] to [11] of the CALL-1 Form.

3)  The Director’s Decisions

4.  The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 4 June 2015.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  of the Bill of Rights (‘BOR 3’), as well as her other statutory and convention rights against torture and persecution.

5.  The Director on 30 March 2017 invited the applicant to submit further materials on all applicable grounds for non-refoulement protection.  The Director decided against the applicant’s right to life claim on 25 April 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life)  of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 7 September 2016, the Board dismissed the applicant’s appeal against the Director’s decision on 23 February 2017 (‘Board’s First Decision’).  The applicant then appealed against the Director’s Further Decision to the Board.  No hearing was held.  The Board dismissed the applicant’s appeal against the Director’s Further Decision on 9 August 2018 (‘Board’s Second Decision’). 

7.  In the Board’s First Decision, the Board held that on the evidence, there was no state actors involved.  There was no well-founded fear that the applicant would be subjected to persecution.  There was no evidence that she would be subjected to severe ill-treatment if she was to return home.  There was no evidence that she would be subjected to torture.  Internal relocation was possible.  In the Board’s Second Decision, the Board held that there was no evidence showing that the applicant is at risk of harm to life from capital punishment inflicted by the Philippines government.

5)  Decision of the Judge

8.  The applicant filed a Form 86 with supporting affirmation before the Judge.

9.  The Judge assessed the applicant’s documents and held that the applicant did not point out any error in the Board’s decisions.  There was no error of law or procedural unfairness in the Board’s decisions.

6)  Grounds of appeal

10.  The applicant stated in her notice of appeal the following :

‘ I am disagree with the decision of authorities because it is toward to my life TCAB did not provide me any legal representation in my appeal this is the matter of high standard of fairness I am a common person so I am not aware of court procedure so I would like to review my case again’

11.  The applicant in her written submissions stated general complaints without elaborating or specifying how those relate to the particular facts or circumstances of her case.  The applicant complained that she had ‘never’ been provided with language and legal assistance.  This is not true.  According to the applicant’s non-refoulement claim form at Part 5 Questions 68 and 69, the applicant was provided with legal assistance.  According to the Board’s First Decision at paragraph 13, she was provided with an interpreter before the Board.

7)  Our view

12.  We will repeat the approach of this Court in dealing with cases of this nature :

(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 claims cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the 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 their decisions.

(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.  In the determination for 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 a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

13.  In our view, there are no merits in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The applicant has not provided any proper ground for her appeal.

14.  We see no error in the Judge’s decision.  Accordingly, the appeal is dismissed.