CARIAGA RAQUEL LOR v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 106/2024

[2025] HKCA 865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 106 OF 2024

(ON APPEAL FROM HCAL NO. 1380 OF 2019)

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J U D G M E N T

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Hon S T Poon J (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 12 March 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 15 May 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 26 September 2018.

BACKGROUND

2.  The Applicant is a national of the Philippines. She last arrived in Hong Kong on 14 April 2013 to work as a foreign domestic helper with permission to remain until 30 December 2014 or within 14 days of its termination, whichever was the earlier. Her employment contract was prematurely terminated on 13 December 2014. On 16 December 2014, she was arrested by the police for theft, for which she was subsequently convicted and sentenced to three months’ imprisonment. Upon her discharge from prison, she was transferred to the Immigration Department. She then lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by a creditor due to an outstanding debt. 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 26 September 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 3 risk[2], BOR 2 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s Decision to the Board. On 15 May 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:

“Whilst the Board was willing to accept the factual matrices of the [Applicant]’s claim, namely that she had indeed obtain a loan and the threats by the creditor thereafter due to her default on repayment, it was not satisfied that she would face a real chance of serious harm or a real risk of significant harm if refouled [67] – [71]. There was no evidence of state involvement or state acquiescence in this case [78]. Having considered the country of origin information (“COI”), the Board was satisfied there was adequate state protection to the applicant and her family if she returned to the Philippines [80]. Further to that in relation to Persecution Risk, the Board also found she does not have a well-founded fear of persecution as COI indicated there were adequate protection measures and the option of internal relocation was available to her. [84] – [89] Based on her evidence, the Board was not satisfied her ground under Torture risk was proven as there was no indication she was subjected to severe pain or suffering, physically or mentally [90]. Lastly, the Board found that there was no evidence to substantiate her claim under BOR 2 and BOR 3 risk [95] and [96].”

THE JUDGE’S DECISION

5.  On 22 May 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. The Applicant’s intended grounds of judicial review, as set out in a document attached to her affirmation filed on the same date, have been summarised by the Judge at §12 of the CALL-1 Form, as follows:

“(1) Procedural impropriety: failure to properly apply para. 2 of the UN committee against Torture General Comment No. 2; failure to conduct sufficient enquiry into the relevant country of origin conditions; failure to give sufficient reasons on BOR 3 risk; and failure to consider her fear and the loan shark would harm her.

(2) Error/misdirection in law: failing to take into account the consideration of psychological strain and threats to her personally or threats to her directly to kill her.”

6.  On 12 March 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. Before me, the applicant confirmed that she understood the Board’s Decision and she was free to state her case before the Board. She further said that she did not think that the Board was wrong in its decisions, but she wanted to stay here because she was unable to pay her loan.

…

[16] For the reasons given in paragraph 9, the Board rejected her evidence.

[17] The grounds under paragraph 12 do not assist her. They are bare allegations or her opinions without any evidence in support…

[18] The [Applicant] has raised no valid ground to challenge the Board’s Decision.

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

THE APPEAL

7.  In her Notice of Appeal filed on 18 March 2024, the Applicant put forward the following three grounds of appeal:

“1. If the Decision is manifestly unreasonable, it can be challenged, this occurs when no reasonable decision maker would have arrived after same conclusion.

2. Essentially if the Decision lacks logic coherence on a rational basis, it falls under this ground.

3. If the decision breached the Human Rights Act 1998 especially in terms of proportionality is concerned” [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, COI, 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’s grounds of appeal are bare, general assertions without particulars. The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or 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.