PALACIO ARIEL AYAGAN v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 69/2024

[2025] HKCA 881

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 69 OF 2024

(ON APPEAL FROM HCAL NO. 1093 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 20 February 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 3 April 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 10 August 2018.

BACKGROUND

2.  The Applicant is a national of the Philippines. He last arrived in Hong Kong as a visitor on 29 March 2009 with permission to remain up to 12 April 2009. His limit of stay was subsequently extended up to 15 April 2009. He did not depart after the expiry of his limit of stay, and overstayed illegally. On 11 June 2009, he surrendered himself to the Immigration Department and raised a torture claim[1], which was rejected by the Director on 6 August 2013. On 30 August 2013, he lodged a non-refoulement claim, which was assessed on all applicable grounds other than the risk of torture. The Applicant claimed that, if refouled, he would be harmed or killed by his uncle called Tata (“Uncle Tata”) and Uncle Tata’s children due to a land dispute in his home district. Details of the Applicant’s claim have been summarised by the Judge at §§4-7 of the CALL-1 Form.

3.  By a Notice of Decision dated 10 August 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all remaining applicable grounds: BOR 3 risk[2], BOR 2 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s Decision to the Board. On 3 April 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 §§13-16 of the CALL-1 Form, as follows:

“[13] Having considered the [Applicant]’s evidence, the Board accepted that there was a land dispute, but it did not and would not directly affect the [Applicant] in any way. The Board reviewed the court’s decision provided by the [Applicant] and found that it concerned a dispute between the [Applicant]’s grandfather and his three siblings. The Board also found that Uncle Tata, whose real name is Bartolome was a brother of the [Applicant]’s great grandfather who died in 1942. It was therefore against the laws of nature that Uncle Tata would still be alive in 2008, i.e. 75 years after the death of the [Applicant]’s great grandfather. Further, the Board discovered from the documents that the [Applicant]’s father was still paying tax in 2013, meaning that he was still alive at that time, which was contrary to the [Applicant]’s evidence.

[14] The Board formed the view that the [Applicant] was not a witness of truth and he had fabricated claims in relation to Uncle Tata. The Board found that the [Applicant] (i) never had an Uncle Tata and no cousins born to an Uncle Tata; (ii) never been harassed or threatened in relation to a land dispute; and (iii) not of any adverse interest to any relatives who was upset about not receiving a share of land.

[15] Details of the factual findings from the Board were set out in paragraphs 96-118 of the Board’s Decision.

[16] In light of such findings, the Board concluded that the [Applicant]’s case failed to meet any of the requirement under Persecution risk [2]-[10], [131], BOR 2 or BOR 3 risk [11]-[15], [129]-[130]. In any event, the [Applicant] would be safe if he stayed in Manila [119]-[128].”

THE JUDGE’S DECISION

5.  On 24 April 2019, the Applicant filed a Form 86 together with his supporting affirmation to apply for leave to apply for judicial review of the Board’s Decision. In gist, his grounds revolved around procedural unfairness, irrationality and unreasonableness in the Board’s Decision. He contended that there was insufficient time for him to prepare for the hearing before the Board because the hearing bundle was served late and he lacked language and legal assistance; that he did not have the opportunity to make his submissions, in particular to reply to the submissions made by the representatives of the Director; that the source of news relied on by the Board were not officially recognized and were hearsay; and that the Board and the Director relied on outdated cases in determining his case.

6.  On 20 February 2024, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[20] 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…

[21] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

…

[23] The grounds raised … are not valid to challenge the Board’s Decision. There is no evidence that he had complained to the Board that [the Applicant] was not given time to prepare his case. Nor was there any application for adjournment of the hearing to give him more time to prepare for the hearing. The Director was not represented at the hearing. He cannot complain that he was not given a chance to reply to the submissions of the representative acting for the Director. It is only his personal opinion that the Director had relied on outdated cases or he had made speculations that he is safe to return to the Philippines.

[24] There is no reason that the Court should interfere with the Board’s finding of the facts. The [Applicant] fails to show that he has any realistic prospect of success in his proposed judicial review.”

THE APPEAL

7.  In his Notice of Appeal filed on 27 February 2024, the Applicant merely stated the following:

“I want to challenge the decision. The decision is not reasonable.”

8.  The Applicant has failed to lodge any written submissions in support of his appeal contrary to the directions given by the Registrar of Civil Appeals on 21 May 2024. Accordingly, he is deemed to have waived the right to have an oral hearing of his appeal and elected to have his 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’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 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 has failed to identify or show any error of the Judge in his decision of 20 February 2024, and has failed to 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.