RE ENTENDEZ JUNREY WABE

CACV 299/2022, [2023] HKCA 582

On Appeal From [2022] HKCFI 2248

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 299 OF 2022

(ON APPEAL FROM HCAL NO. 111 OF 2019)

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J U D G M E N T

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

I. The appeal

1.  This is an appeal against the decision (the ‘Decision’)  of Deputy High Court Judge Bruno Chan of 25 July 2022.  The Judge refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (the ‘Board’)  dated 28 December 2018, which dismissed his appeal against the decision of the Director of Immigration (the ‘Director’)  dated 25 May 2018 rejecting his claim for non-refoulement protection under all applicable grounds.

2.  The applicant consents to this appeal being determined on paper without an oral hearing.  The applicant lodged skeleton submissions within the stipulated timeframe as directed by the Registrar of Civil Appeals.  Accordingly the Court will deal with this appeal on paper based on the available documents. 

II.  Background

3.  The applicant is a national of the Philippines.  The applicant entered Hong Kong in January 2017 as a visitor but he overstayed.  He raised a non- refoulement claim in May 2017 on the basis that if he returned he would be harmed or killed by two unknown killers because the applicant witnessed them murdering another person.

4.  The background facts have been summarised by the Judge at [2]-[4] of the Decision.

III.  The Director’s Decision

5.  The Director’s 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’), Article 2 (right to life)  of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against persecution except torture (the ‘Director’s Decision’).

IV.  The Board’s Decision

6.  After a hearing held on 10 October 2018, the Board dismissed the applicant’s appeal (the ‘Board’s Decision’).

7.  The Board accepted that the applicant had witnessed a killing but found there was no basis for the applicant’s assertion that the two killers were able to locate him if he returned to the Philippines. There was also no basis for the allegation that the alleged killers were even looking for the applicant.  The applicant made no claim that the two killers knew who the applicant was or where he lived.  He made no claim that his family in the Philippines has seen or heard from the killers since the applicant left the Philippines for Hong Kong.  The Board was not satisfied that the applicant faced a real risk of harm if the applicant is refouled.  

V.  Decision of the Judge

8.  The applicant filed a Form 86 and a supporting affirmation on 10 January 2019.  No grounds for seeking relief were provided in either document.  No grounds were provided during the hearing before the Judge.

9.  The Judge held that in the absence of any ground to show any error of law or irrationality or procedural unfairness there was no reasonable arguable basis for the application. 

10.  The Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review and accordingly refused his leave application.

VI.  Grounds of appeal

11.  In the Notice of Appeal filed on 4 August 2022, the applicant stated :

‘ I am not satisfied with the Decision because its away from facts and reality which are related with my case. There is no any transparency in these Decision. Please accept my application and allow me to process further my case.’

12.  In the written submissions lodged on 15 August 2022, the applicant complained that the decision was not transparent as many things were ignored by the decision makers.  He complained that there are a lot of differences between what the decision makers think and the actual situation.  He complained that he cannot fight against the political influence in his country.  He stated that he was an asylum seeker and does not have enough resources to stay in Hong Kong without help.

VII.  Our view

13.  In our view, the applicant’s notice of appeal and written submissions consist of bare allegations without particulars or specifics.  These are not proper grounds of appeal.  The applicant has not identified any valid ground for judicial review or any error of law on the part of the Judge in assessing his application.

14.  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 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 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).  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.

15.  In our view, the applicant’s appeal is devoid of any merits.  We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.