RE CALIP MYRNA JACOB

CACV 423 /2022, [2024] HKCA 52

On appeal from [2022] HKCFI 3203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 423 OF 2022

(ON APPEAL FROM HCAL NO. 622 OF 2019)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”)  given on 21 October 2022[1] refusing to grant her leave to judicially review of the decisions of the Director of Immigration (“the Director”)  and the Torture Claims Appeal Board (“the Board”)  concerning her non-refoulement protection claim.

2.  The applicant has lodged a written submission to support her appeal.  On 26 October 2022, she consented to the disposal of her appeal on paper by the Court of Appeal. 

The applicant’s claim

3.  The applicant is a national of the Philippines aged 56.  Between 2001 and 2009, she was permitted to work in Hong Kong as a domestic helper.  When her employment contract was terminated on 5 December 2009, she did not depart and overstayed.  She was arrested by the police on 29 August 2010.  In September 2010, she lodged a torture claim[2] which was rejected by the Director.  Her appeal was dismissed on 1 November 2011.  In July 2015, she raised a non-refoulement claim based on her fear of being harmed or killed by her husband.  The details of his claim were set out in [9] of the Director’s decision and [7] and [8] of the Board’s decision. 

4.  In gist, the applicant claimed that her husband is an alcoholic and also uses drugs.  Her case, as found and accepted by the Board, is that in July 2008, the electricity supply of their home was cut off because the bill was overdue and unpaid.  The applicant’s husband phoned the applicant asking her to send money for pay the electricity bill.  She was unable to send much and he kept on calling her.  Subsequently, her husband was involved with tampering with the neighbour’s electricity wires, as a result of which he was assaulted by the neighbour and hospitalized.  He was also arrested by the police and kept in custody for 14 days.  He blamed her for his predicament and threatened to kill her if she were to return home.  He later moved away from their home and no longer had contact with the applicant.  

The Director’s and the Board’s decisions

5.  By a Notice of Decision dated 26 February 2018, the Director rejected the applicant’s non-refoulement claim having regard to the BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. 

6.  The applicant’s appeal against the Director’s decision was heard before the Board on 25 July 2018, during which the applicant gave evidence and answered questions from the Board.  By a decision dated 31 December 2018, the Board dismissed the appeal.  As mentioned in [4] above, the Board accepted the basic facts underlying the applicant’s claim.  The Board also accepted that the applicant genuinely believes, despite the lapse of time, her husband will harm her if he sees her again.  The Board however did not accept that their children would inform the husband of the applicant’s whereabouts if she were to return to the country.  Based on the country-of-origin information (COI), which was not disputed by the applicant, the Board found that since the applicant’s departure from the Philippines, there is in place adequate and effective protection in the law and judicial system of the country to address domestic violence.  The Board considered that state protection was reasonably available and also the applicant could have relocated to live with her mother.  The Board did not accept that it was unsafe for the applicant to return to the Philippines or that she would face any real risk of harm upon her return.  The Board concluded that the applicant failed to show she was entitled to non-refoulement protection on any of the applicable grounds.

The Judge’s decision

7.  The applicant filed a Form 86 and affidavit on 5 March 2019 to seek leave to apply for judicial review against the decisions of both the Director and the Board.  She did not provide any grounds in support of the application.

8.  The Judge dealt with the leave application on paper.  By a Form CALL-1 dated 21 October 2022, he dismissed the application and gave his reasons at [10] to [14] as follows: 

“10. … no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date … As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

11. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12. In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their earlier decisions that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Pakistan, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13. In the premises, and 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 or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim on all applicable grounds.

14.  For the reasons given, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly refuse her leave application.”

The appeal

9.  By a notice of appeal dated 26 October 2022, the applicant appealed the Judge’s decision to this court.  The grounds of appeal in the notice of appeal, which are identical to the written submission dated 9 November 2022, may be summarised as follows:

(1)  There is no doubt that the applicant’s husband would physically harm her, as he had done so since they were married.  The applicant truly feared that he would carry out his threats and harm her. 

(2)  Culturally, Filipinas are raised to be a good wife and mother and would be submissive and make any sacrifice just to keep the family intact.

(3)  Despite the enactment of laws, domestic violence and violence on women is prevalent in the Philippines.  The government and the community as well as the applicant’s family all believe that marital conflicts should be resolved within the confines of the conjugal home.  There has been under reporting of domestic violence, and victims are not supported.  

(4)  The police and the government may be unable to protect the applicant.

(5)  Relocation is not possible as without family, relatives or support system the hardship is immeasurable.  The applicant has three children.  She cannot just leave them and there is no way she can run away from her husband.   

Our reasons for decision

10.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In sum, 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 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 the decision of the Board.

11.  For the reasons set out below, we are of the view that the matters and arguments stated in the notice of appeal and the written submission have no merits: 

(1)  The applicant has not provided any ground for seeking relief in her Form 86 or supporting affirmation.  It is not open to her on appeal to raise new points and arguments that had not been argued before the Judge.  There is also no evidence to support the matters asserted in her grounds of appeal and written submission. 

(2)  The applicant’s assertion that her husband had abused her since they were married is contrary to the evidence given to the Board and the finding of the Board that the problem only began in 2008: see [48] of the Board’s decision. 

(3)  The applicant’s assertions that the police and the government may be unable to protect her and victims of domestic violence are not supported are also at variance with her evidence before the Board and the COI accepted by the applicant: see [44], [45] and [54] of the Board’s decision.  The applicant has in any event not provided any basis for challenging the Board’s finding on the availability of state protection.

(4)  The applicant’s assertion that internal relocation is not possible is also not borne out by the evidence before the Board. It is the applicant’s evidence that her mother has relocated and no longer has contact with her husband; and she also accepted that her children are aware of her situation and problem with her husband: see [51] and [57] of the Board’s decision.  On the evidence, the Board was entitled to conclude that the applicant could relocate to live with her mother. 

(5)  In light of the above and given the Board’s findings, the applicant’s assertion that she will be harmed by her husband if she returns to the Philippines cannot stand.  

12.  We have separately considered the decisions that the applicant seeks to challenge.  We do not discern any legal errors, irrationality or procedural irregularities.  We agree with the Judge that the intended judicial review has no prospect of success, and the Judge is correct in refusing to give leave to apply for judicial review. 

13.  As there is no merit in the appeal or the intended application for judicial review, we dismiss the appeal.