RE GARCIA FERLYN LUZON

CACV 443/2020

[2021] HKCA 313

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 443 OF 2020

(ON APPEAL FROM HCAL NO. 696 of 2018)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 2 September 2020[1] dismissing her application for leave to apply for judicial review. The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 13 February 2017 rejecting his non-refoulement claim and the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 13 April 2018 dismissing her appeal against the Director’s decision.

2.  The applicant has consented to the appeal being heard by two judges of the Court of Appeal.

3.  The applicant is a national of the Philippines aged 30.  She arrived in Hong Kong on 5 March 2009 and was given permission to remain as a visitor until 29 March 2009.  She overstayed and was arrested by the police on 27 July 2009.  On 7 June 2011, she raised a non-refoulement claim. As she failed to answer her recognizance and the Immigration Department could not contact her, no further action was taken on her claim.  On 20 September 2016, the applicant raised another non-refoulement claim and eventually surrendered herself to the Immigration Department.

4.  The applicant’s claim is based on her fear of being harmed or killed by the family members of her boyfriend who blamed her for his death.  Her claim was set out in detail in the Director’s decision at [7] and the Board’s decision at [12], [41] to [59], and summarised by the Judge in [1] to [4] of the Form CALL-1. 

5.  In gist, the applicant claims that she and her boyfriend (“Omar”) were former schoolmates.  Omar came from a wealthy family which operated many businesses in Manila.  In September 2008, she informed him she wanted to end the relationship.  On his way from Manila to see her with a view to persuade her to change her mind, Omar met with a traffic accident and was killed.  Afterwards the applicant received warning from Omar’s cousin and also threatening messages from unknown people.  Fearing for her safety, she came to Hong Kong and overstayed.  

6.  By his decision dated 13 February 2017, the Director rejected the applicant’s claim having regard to the torture risk[2], persecution risk[3], BOR 2 risk[4] and BOR 3 risk[5] grounds. 

7.  The applicant appealed the Director’s decision to the Board.  The Board heard her appeal at an oral hearing held on 23 January 2018 during which the applicant gave evidence and answered questions from the Board.  By its decision dated 13 April 2018, the Board dismissed the appeal.  In summary, the Board accepted that the applicant formed a relationship with Omar, and that he died from a traffic accident when he was on his way from Manila to see after she told him she wished to discontinue the relationship.  The Board also accepted that Omar’s family was distraught by his death and attributed some blame for it to the applicant.  However, the Board found the applicant to have fabricated her evidence about receiving death threats from Omar’s family or unknown people.  The Board did not accept there was a real risk that Omar’s family would harm her on her return to the Philippines.  The Board concluded that she failed to make out a case for non-refoulement protection under any of the applicable grounds.   

8.  On 20 April 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  Other than stating in her supporting affidavit that she disagreed with the Director’s decision and that her dangerous situation had been ignored, the applicant did not provide any ground for seeking relief in either the Form 86 or her affidavit.

9.  The applicant did not request an oral hearing. The Judge dealt with the application on the paper.  For reasons set out in [9] to [13] of the Form CALL-1, the Judge refused to give leave and dismissed the application:

“9. On 20 April 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affidavit of the same date she merely stated that she wanted to review their decisions because they disregarded her dangerous situation but without providing any particulars or elaborations that they did so, nor did she put forward any proper or valid grounds for her intended challenge. Neither did she request any oral hearing for her application. As such and in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

10. 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

11. In the Applicant’s case, the fact is that it has been established by the Director in his decision 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 the Philippines, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12. 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.

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

10.  By a Notice of Appeal filed on 8 September 2020, the applicant appealed the Judge’s order to this court.  She stated in the Notice of Appeal that she rejected the Board’s decision, and that the Board disregarded her dangerous situation.  

11.  The applicant had put in a written submission in which she advanced the following grounds:

(1)  The Judge agreed with the Board’s decision, which was insensitive to the situation in the Philippines.

(2)  The Judge believed that she could relocate, but relocation would mean she could not live like a normal human being and had to be on the run like a fugitive.  This is against the preamble in the UDHR which recognises the right to live a dignified life, not to hide, not to run away all the time and to live as a free man.

(3)  As stated in Amnesty International’s 2017/2018 human rights report and Human Rights Watch report on the Philippines, the problem of the country is obvious. It is fraught with unlawful killing by police and armed individuals and run by a government that has no accountability.  It will not be safe for her to return to the Philippines.

12.  We heard the appeal on 8 March 2021.  At the hearing, the applicant indicated she had nothing to add.

13.  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.

14.  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board.  They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

15.  The role of the court in a judicial review is not to provide a further avenue of appeal.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  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 and/or the process by which the decision was made.

16.  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, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.  In light of the established legal principles set out above, we are of the view that the grounds of appeal and the arguments put forward by the applicant do not constitute viable grounds of appeal.  Firstly, the applicant did not advance any ground for seeking relief in her application for leave to bring judicial review.  The matters now raised in the written submission are new grounds and arguments.  It is not permissible to raise new grounds and arguments, especially those that are fact-sensitive, on appeal.

18.  Secondly, evaluation of risk of harm are matters for the primary decision makers and not for the court.  The Board had rejected the applicant’s assertion that Omar’s family was pursuing her or would harm her. Although she complained the Board was insensitive to the situation in her country, the applicant has not pointed to any error in the Board’s rejection of this part of her case.  Her mere assertion that she would be in danger if she were to return to her country is thus not a proper ground for judicial review.

19.  Thirdly, with regard to the complaint against the Director’s finding that internal relocation option is reasonably available to the applicant, this has no relevance given the Board’s rejection of her claim that she would be pursued and harmed by Omar’s family.   

20.  Fourthly, in an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  The applicant has not identified any error in the Judge’s reasons for decision. 

21.  In any event, we have reviewed the Board’s decision and the Judge’s decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in the Board’s decision.  There is no ground to interfere with the Board’s findings and decision.  Likewise, there is no basis to disturb the Judge’s decision.  Accordingly, we dismiss the appeal.