RE BELZA DIONNE SALVILLA

CACV 481/2022, [2023] HKCA 659

On appeal from [2022] HKCFI 3616

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 481 OF 2022

(ON APPEAL FROM HCAL NO. 974 OF 2022)

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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):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung (“the Judge) given on 1 December 2022[1] refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑Refoulement Claims Petition Office (“the Board”) dated 12 August 2022 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 6 June 2022 rejecting the applicant’s non‑refoulement claim.

Background

2.  The applicant is a 45-year-old national of the Philippines. He last entered Hong Kong as a visitor on 8 May 2013 and had overstayed since 30 May 2013, for which he was arrested by the police on 1 April 2014.

3.  On 3 April 2014, he lodged a non-refoulement claim with the Immigration Department but did not follow up on his claim. On 23 May 2014, a Removal Order was issued against him and he was released on recognizance. He failed to report to the Immigration Department in February 2015, and was arrested by the police in March 2016. He applied for non-refoulement protection again on 22 April 2016. He did not follow up on his claim and absconded in September 2016. After he was arrested by the police in December 2016, he applied again for non-refoulement protection on 30 December 2016. He failed to return the non-refoulement claim form (“NCF”), which was due on 14 August 2017. The Director treated his application as being withdrawn. On 24 March 2022, the applicant was arrested by the police. He applied to the Director to re-open his claim, which was acceded to by the Director. Thereafter, with the assistance of the Duty Lawyer Service, he submitted his NCF on 18 May 2022 and attended the screening interview on 26 May 2022.

4.  The applicant’s claim is based on fear of being harmed or killed by members of the New People’s Army (“NPA”) because he had feigned allegiance to the NPA. According to the applicant, he joined the NPA in 1997 and was an active member of the NPA. He helped to carry food and weapons for the NPA in their fights against the government and assisted NPA members who were injured. A year later, he did not want to continue his involvement as he had witnessed many casualties and did not want to put his life at risk. Since 1998, he declined invitation to the NPA rallies and fights and would make excuses for not participating. In 2007, the applicant came to Hong Kong as a visitor. After returning to the Philippines, he feigned to his NPA member friends that he remained an active member of the NPA. When in fact he avoided them and moved to Manila to work as a security guard. In 2012, some NPA members found him in Manila and suspected him of joining the police or army and exposing NPA to the government authorities, given his background as a criminology graduate. In November 2012, the applicant was stabbed by a stranger in the shoulder with a knife. Fearing that he was being targeted by the NPA, he came to Hong Kong in May 2013. He did not apply for non-refoulement protection prior to 2014 because he was not aware that he could do so, and he did not complete his NCF as he was unwell. The details of his claim are set out in details in [11] of the Director’s decision and at [13] of the Board’s decision.

The Director’s decision

5.  By a Notice of Decision dated 6 June 2022, the Director rejected the applicant’s claim on the BOR 2 risk[2], BOR 3 risk[3], persecution risk[4] and torture risk[5] grounds. The Director did not accept there was imminent risk of harm, having regard to his little involvement in NPA activities and his uneventful stay in Manila which indicated that the NPA members had no intention to harm or to kill him. His delayed application for protection and frequent failure in following up on his claim were inconsistent with a person who was genuinely facing a life-threatening fear. There was also no evidence to show that the NPA was still as influential as claimed. The Director further considered that state protection and internal relocation options were reasonably available to him.

The Board’s Decision

6.  The applicant appealed to the Board. On 3 August 2022, the Board conducted an oral hearing, during which he was assisted by an interpreter. By a decision dated 12 August 2022, the Board dismissed the appeal.

7.  In gist, the Board found the applicant’s evidence in relation to his past role with the NPA lacking in detail, and his explanation was vague. The Board found that it was implausible that the applicant was not assigned with any combat role with the NPA when he claimed that he had previously received weapons training at university[6]. The Board did not accept that for nine years he was able to convince his NPA member friends that he was an active member when he did not attend a single NPA-related activity or participate in the NPA in any way[7].

8.  The Board further had regard to the fact that the Philippines government had issued two passports to the applicant, which suggested they had no adverse interest in him, and was consistent with the applicant never in fact held any role with the NPA, particularly where the country of origin information (COI) indicated that the Philippines authorities had actively tracked and prosecuted members of the NPA[8].

9.  The Board did not accept that the knife attack was related to the NPA in view of the attacker’s ineptitude and the fact that the attack occurred 14 years after the applicant’s last activity with the NPA[9]. The Board’s view was strengthened by the fact that the applicant had never joined the police or the military and he was able to stay in the Philippines unharmed after the attack[10].

10.  The Board considered that the available COI defeated the applicant’s assertions that the Philippines authorities were in collusion with the NPA and would not protect him. On the contrary, the COI showed that the Philippines authorities were active in combatting and prosecuting the NPA, which indicated that it was the higher levels of the Philippines authorities that were responsible for formulating its response against the NPA[11]. The Board also found that the applicant had little or no knowledge about NPA. For the above and in the light of his conduct and delay in lodging and pursuing his protection claims, the Board concluded that the applicant’s claim was not substantiated and dismissed his appeal[12].

The Judge’s decision

11.  The applicant filed a Form 86 on 20 September 2022 to apply for leave to judicially review the Board’s decision. Other than stating in his supporting affirmation that he did not agree with the Board’s decision and that his life was still in danger as his enemies were still looking for him, he did not provide any grounds for relief.

12.  By a Form CALL-1 dated 1 December 2022, the Judge refused to grant leave for judicial review and gave his reasons at [15] to [20] as follows:

“15. 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. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

17. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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 the decision of the Board.”

18. The Board had assessed his case and did not accept his evidence on the facts. There is no valid reason from the applicant to challenge the Board’s Decision.

19. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

Grounds of appeal

13.  The applicant filed a Notice of Appeal on 13 December 2022 to appeal the Judge’s decision. The Notice of Appeal stated the following as grounds of appeal:

“I want to appeal because I don’t want yet to go home cause my life is still in dangerous situation.”

14.  Despite the directions given by the Registrar of Civil Appeal, the applicant has not lodged any written submission by the stipulated time. The applicant was deemed to have waived his right to have an oral hearing, and have elected to have this appeal disposed of on paper. The hearing fixed for 7 March 2023 was therefore vacated. We will deal with the appeal on the papers in the case.

Our reasons for decision

15.  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]. They are that:

(1)  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.

(2)  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.

(3)  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.

16.  In light of the established legal principles set out above, we are of the view that the applicant’s appeal has no merits. Firstly, he has failed to identify any error in the Judge’s decision and has not provided any proper ground for his appeal. His assertion that his situation is dangerous in the Philippines cannot stand in light of the Board’s rejection of his core case and the evidence underlying his claim. Secondly, assessment of credibility and evaluation of risks are matters for the Board, who is the primary decision maker. The Court may only review the findings made by a primary decision maker if it is demonstrated that there are errors of law, irrationality or procedural irregularities or unfairness. The applicant has, however, not shown any legal error, irrationality or procedural irregularity in the Judge’s decision.

17.  In any event, we have reviewed the Board’s decision and the reasons it gave for its decision. We do not see any public law grounds for interfering with the decision. Like the Judge, we are of the view that the intended judicial review has no reasonable prospect of success and that the application for leave to apply for judicial review should be refused. Accordingly, we dismiss the appeal.