RE AURE JONILYN CELSO

CACV 61/2022

[2022] HKCA 1507

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 61 OF 2022

(ON APPEAL FROM HCAL NO. 2117 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court) :

I)  The appeal

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung on 28 January 2022 who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’).

2.  On 4 February 2022, the applicant lodged a written confirmation for his consent to the appeal being disposed of on paper without an oral hearing.  Accordingly, we will deal with the present application on paper.

II.  Background

3.  The applicant is a national of the Philippines.  She last entered Hong Kong as a domestic helper.  Her employment contract was prematurely terminated and she was required to leave but overstayed.  She then raised a non‑refoulement claim on 20 January 2016 on the basis that if she returned she would be harmed or killed by her stepfather as she witnessed her stepsister being raped by him.

4.  The details of the applicant’s claim have been summarized by the Deputy Judge at [5] of the Form CALL‑1.

III.  The Director’s Decision

5.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 13 July 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.

IV.  The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Board on 24 July 2017. After two hearings held on 3 May 2018 and 13 June 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 21 September 2018.

7.  The Board found that while some aspects of the applicant’s claim were credible, many aspects of her evidence were incredible, exaggerated and inconsistent with the country of origin information.

V.  Decision of the Judge

8.  The applicant filed a Form 86 with a supporting affirmation.  In her supporting affirmation, she stated that the Board’s decision was biased and unreasonable without further elaboration.

9.  The Deputy Judge on 28 January 2022 held that the applicant’s grounds are only ‘comments without evidence’ in support.  There was no error of law or procedural unfairness that could be found. 

VI.  Grounds of appeal

10.  The applicant in her notice of appeal stated that she will be in grave danger and may lose her life if she returned to the Philippines.

11.  The grounds of appeal as stated in the notice of appeal are bare allegations without specifics or elaboration.

12.  In her written submissions, the applicant wrote a total of seven grounds of appeal, most of which are country of origin information and elaboration about her view on how the system currently is in the Philippines, without going into any specifics or particulars in the evidence of her case.  The applicant could not point out with any specificity on where it was that the Judge was wrong.

VII.  Our view

13.  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.

14.  In our view, there is no merit in the applicant’s appeal.  The Judge had provided his reasons for rejecting the application in his decision.

15.  We see no error in the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.