BEO JOY EPALAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 433/2022

[2023] HKCA 267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 433 OF 2022

(ON APPEAL FROM HCAL NO 2498 OF 2018)

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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.  On 1 November 2022, the Applicant filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 25 October 2022 (“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 8 October 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 February 2018 rejecting her non-refoulement claim.

BACKGROUND

2.  The Applicant is a national of the Philippines. She last entered Hong Kong as a foreign domestic helper on 2 April 2016 and was permitted to remain until 2 April 2018. Her employment contract was terminated prematurely on 17 April 2016. She was required to leave Hong Kong on or before 1 May 2016. She did not do so, and has overstayed in Hong Kong since 2 May 2016. On 13 May 2016, she surrendered herself to the Immigration Department. On 11 July 2016, she lodged a non-refoulement claim alleging that, if refouled, she would be harmed or killed by a land developer called Valdez Tin due to a land dispute. Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form.

3.  By a Notice of Decision dated 27 February 2018, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s decision to the Board. On 8 October 2018, 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 §§8-10 of the CALL-1 Form, as follows:

“[8] … On 12 July 2018, the Board conducted an oral hearing for her appeal, during which she gave evidence with the assistance of an interpreter [45].

[9] The Board sought clarifications on certain material aspects of the applicant’s claim [45]-[63]. Having considered all the evidence, the Board found that the crux of her claim, i.e., the land dispute, was vague and unconvincing [66]. The Board also found that the claimed fear of harm from the land dispute contained discrepancies in her written statements and oral evidence [68]. Further, the Board noted that the applicant was never inflicted with any harm [69]. In these premises, the Board refused to accept that the applicant was a credible witness [71].

[10] On the basis of lack of credibility, the Board rejected the applicant’s claim and dismissed her appeal.”

THE JUDGE’S DECISION

5.  On 7 November 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86. In her supporting affirmation of the same date, the Applicant said that she could not go back to her country as it was not safe for her to do so.

6.  On 25 October 2022, the Judge refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[16] As to the ground [mentioned in the Applicant’s affirmation], this reason had been considered and rejected by the Board. There is no valid ground 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 dated 1 November 2022, the Applicant put forward the following ground(s) of appeal (sic):

“I am disagree with the decision made by Director of Immigration as well the Torture Claim Appeal Board. I do not think my case was determined fairly.” [sic]

8.  The Applicant has failed to lodge any skeleton argument in support of her appeal in accordance with the directions given by the Registrar of Civil Appeals on 14 December 2022. Accordingly, the Applicant is deemed to have waived her right to have an oral hearing of the appeal, and elected to have the appeal disposed of on paper.

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’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 is an error 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 point to or show any error in the Judge’s decision of 25 October 2022, and has failed to raise any viable ground of appeal against the Order.

12.  The Applicant’s appeal has no merits, and is dismissed.