RE ESTACIO RECHIE LACNO

CACV 235/2022, [2023] HKCA 941

On Appeal From [2021] HKCFI 126

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 235 OF 2022

(ON APPEAL FROM HCAL NO 2287 OF 2018)

____________________

____________________

_________________

J U D G M E N T

_________________

Hon G Lam JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge C P Pang (“Judge”) on 21 January 2021[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 12 October 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 20 December 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a Philippine national.  She first worked as a foreign domestic helper in Hong Kong in 2009.  She last arrived in Hong Kong on 19 July 2015 and was employed as a foreign domestic helper until 7 December 2015, when her employment contract was prematurely terminated.  She was subsequently permitted to remain as a visitor in Hong Kong until 25 February 2016, but she did not depart and overstayed.  She surrendered herself to the Immigration Department on 11 April 2016, and subsequently raised her non-refoulement claim on 19 May 2016.  On 18 December 2018, the applicant gave birth to her daughter in Hong Kong.  Her daughter is a Hong Kong permanent resident, as is her daughter’s father, to whom she is not married.

3.  The applicant’s claim was based on the fear that, if she returned to the Philippines, she would be harmed or even killed by her abusive husband.   The factual background was set out at paragraphs 7.1 to 7.28 of the Director’s decision.

4.  By notice of decision dated 20 December 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against her.  The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 30 May 2018, during which the applicant answered questions from the Board with assistance from a Tagalog language interpreter.  The Board found that the applicant did not suffer any physical assault when she returned to the Philippines for several months in 2011 country to what she claimed at the hearing.  Further, based on the applicant’s own evidence, she returned to the Philippines for two weeks in 2014, during which she met with her husband and no assaults or harm to her occurred.  The Board also noted that the applicant candidly said that the reason she did not want to return to the Philippines was that she did not wish to risk her children’s studies being disturbed, and that she did not really harbour any concern for her own well-being.  On the evidence as a whole the Board found that there was no real risk of harm in the event of refoulement.  Accordingly, in its written decision issued on 12 October 2018 the Board dismissed the applicant’s appeal with respect to all the applicable grounds.

Decision of the court below

6.  On 22 October 2018, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In her supporting affirmation, she stated that her life is in danger in her homeland, but did not raise any specific grounds for judicial review.

7.  Following consideration of the documents only, on 21 January 2021 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [13] – [23] of the Form CALL-1 as follows:

“ 13. The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, 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. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. 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, procedural unfairness or irrationality in the decision of the Board.

14. When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.

15. In the present case, the Board gave her account of primary facts and events the most favourable interpretation. The Board did not take issue with the applicant’s asserted primary facts and events. It however disagreed with the applicant on the assessment of risk flowing from such events. Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment that the perceived risk of harm is far-fetched and fanciful which does not rise to a real risk.

16. As explained above, the assessments of evidence and risk of harm are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

17. The applicant stated no grounds of the judicial review in Form 86.  She mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.  It contained only a regurgitation of her claim.  In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

18. The Board has taken a view on credibility most favourable to the applicant.  The applicant did not lodge the claim until 3 months after she overstayed.  Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety.  It could be taken into account as damaging the applicant’s credibility.

19. Further, even if one gives the claimed account of events the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating no real risk of future harm.

20. The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

21. Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  They gave the applicant a reasonable opportunity to state her case and enquired into the issues appropriately.

22. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

23. 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, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.”

Appeal to this Court

8.  On 11 February 2021, the applicant filed a summons at the Court of First Instance to apply for an extension of time to appeal against the Judge’s refusal of leave for judicial review.  Deputy High Court Judge Bruno Chan refused that application on 10 August 2021.[6]

9.  The applicant then filed a summons at this Court on 6 September 2021 to renew her application for an extension of time to appeal.  G Lam JA granted an extension for the sole reason that the period immediately following the Judge’s decision dated 21 January 2021 was at the height of the fourth wave of Covid-19 and that the applicant and her newborn child were not vaccinated and remained vulnerable to infection.

10.  On 8 June 2022, the applicant filed her Notice of Appeal against the Judge’s decision.  In the Notice of Appeal, she raised the following grounds of appeal:

(1)  the applicant would be in grave danger were she to return to the Philippines;

(2)  the applicant requested permission to stay in Hong Kong to take care of her daughter who is a young child that cannot be left behind on her own in Hong Kong;

(3)  the applicant wishes her daughter, who is a permanent resident, to live a life free of danger in Hong Kong.

11.  On the same day that she filed the Notice of Appeal, the applicant agreed in writing for the appeal to be disposed of on paper without an oral hearing.

12.  The applicant lodged her written submissions on appeal on 22 June 2022.  In those submissions, she elaborated on the grounds raised in her Notice of Appeal, and clarified that she fears that her daughter would be in danger if she were to bring her daughter with her in the event of refoulement to the Philippines. In particular, the applicant stated that her family would never accept her and her daughter, due to her daughter being born out of wedlock.

Discussion

13.  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. 

14.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

15.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection, due to the Board’s finding that based on the applicant’s own evidence, she had returned to the Philippines in 2011 and 2014 during which she met with her husband and no assaults or harm to her occurred.  Thus the Board found that there was no real risk of harm in the event of refoulement.  Such findings are within the province of the Board.  The court will not interfere with such assessments unless they are reversible on public law grounds.  The applicant has put forward no such grounds in this case.

16.  The applicant’s request for permission to stay in Hong Kong to take care of her minor daughter is a matter that is not within the scope of a non-refoulement claim, and thus not a valid basis for challenging the Board’s decision.  Requests for permission to stay in Hong Kong are to be made separately to, and decided by, the Director.

17.  The applicant’s concern that she and her daughter would be in danger in the Philippines as a result of her daughter being born out of wedlock, is a circumstance that arose after the Board’s decision, and does not affect the validity of that decision.  Further, given that her daughter is a Hong Kong resident, there is no question of her being compulsorily removed to the Philippines.

18.  Having considered the materials before us, we are of the view that the Judge’s conclusion was justified and that he was right to refuse leave.  There is no reasonably arguable ground to challenge his decision.

19.  For these reasons, this appeal is dismissed.

[1]  [2021] HKCFI 126

[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).

[6]  [2021] HKCFI 2254