RE ORTIZ MARISA DAGALE

CACV 44/2021

[2021] HKCA 1057

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 44 OF 2021

(ON APPEAL FROM HCAL NO. 2494 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

1.1  This is an appeal against the decision dated 26 January 2021 of Deputy High Court Judge C P Pang who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’).

1.2  According to the written confirmation of the applicant dated 3 February 2021, she consented for this application to be dealt with on paper without an oral hearing.  Accordingly we will deal with this appeal on paper.

2)  Background

2.1  The applicant is a national of the Philippines.  She entered Hong Kong and worked as a foreign domestic worker.  She overstayed.  She then raised a non-refoulement claim on the basis that if she returned she would be harmed or killed by her husband.  

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

3)  The Director’s Decisions

3.  The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 13 September 2017.  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’), Article 2 (right to life)  of the Bill of Rights (‘BOR 2’), as well as her other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board on 25 September 2017.  After a hearing held on 7 August 2018, the Board dismissed the applicant’s appeal on 26 October 2018.

4.2  The Board found that the applicant was not a reliable witness.  The Board found that despite repeated requests for details and clarifications, the applicant’s account was vague and lacking in particulars.  The Board did not accept her claim of threat from her husband.  The applicant failed on all applicable grounds.

5)  Decision of the Judge

5.1  The applicant filed a Form 86 with a supporting affirmation.  She did not state any specific grounds for her application other than that she thought she will likely be harmed or killed by her husband.

5.2  The Judge on 26 January 2021 held that the Board rejected the applicant’s case mainly due to her lack of credibility.  She also provided an inconsistent account of facts with contradictions in her case.  The applicant delayed in making her non-refoulement claim.  The Judge could not find any legal error or procedural unfairness in the Board’s decision.   

6)  Grounds of appeal

6.1  In her notice of appeal the applicant stated that she disagreed with the decision and asked for a review.  No specific grounds were mentioned.

6.2  In her written submissions and supplemental notice of appeal, the applicant stated that Hong Kong can protect her.  She complained that the decision makers did not assess her claim properly.

7)  Our view

7.1  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 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.

7.2  In our view there is no merit in the applicant’s appeal.  The Judge had provided his reasons of refusal in his decision.

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