RE AGPAD LETICIA S

CACV 308/2020

[2021] HKCA 109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 308 OF 2020

(ON APPEAL FROM HCAL 2074 OF 2018)

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J U D G M E N T

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

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 17 July 2020 refusing her leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 1443.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 10 September 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 28 February 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  The applicant filed her Notice of Appeal on 28 July 2020.  On the same date, the applicant gave consent to the appeal being heard by a two-member court.

A.  Background

4.  The applicant is a national of the Philippines. She came to Hong Kong as a domestic helper.  After her employment contract was terminated on 18 February 2000, she was given a grace period to stay until 27 April 2000 but she overstayed. She was arrested by the police on 26 February 2015. She lodged a non-refoulement claim on 28 February 2015.

5.  The details of the applicant’s claim and her personal background were set out in paragraph 7 of the Director’s Decision, and paragraph 13 of the Board’s Decision.

6.  The applicant claimed that she would be harmed or killed by members of the New People’s Army (“NPA”) of which she had ceased to be a member.  The applicant claimed that she joined the NPA in October 1980.  In 1981, she decided to quit NPA after realizing that NPA would not promote equalities as promised and witnessing a member being tortured.  However, she was threatened by NPA members for her decision.  Out of fear, she fled to Hong Kong for protection.

B.  The Director’s Decision and the Board’s Decision

7.  The Director assessed the BOR3 risk[1], the persecution risk[2], the torture risk[3], and BOR2 risk[4]. The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.  The applicant appealed the Director’s Decision to the Board.  A hearing for the appeal was held on 18 July 2018, during which the applicant answered questions from the Board.  Having considered the oral evidence and the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed her appeal.

9.  The Board found that the applicant’s delay in making the non-refoulement claim contradicted her claimed fear.  Further, the Board found that there were inconsistences in the applicant’s evidence on the key events and thus refused to accept she was a witness of truth (paragraphs 77 - 100 of the Board’s Decision).  In any event, internal relocation was available to the applicant (paragraphs 101 - 103 of the Board’s Decision).

C.  The Deputy Judge’s Decision

10.  The applicant filed a Form 86 on 2 October 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  In her supporting affirmation filed on the same date, she advanced the following grounds of review, which were summarized by the Deputy Judge at paragraph 10 of the Deputy Judge’s Decision:

“10.  On 2 October 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affidavit of the same date she put forward the following grounds for her intended challenge:

(1)  procedural impropriety in their failure to conduct sufficient inquiry into the relevant country of origin conditions;

(2)  procedural irrationality/irrationality in their failure to provide reasons for their finding of lack of BOR 3 risk or to provide sufficient basis in support of such conclusion;

(3)  error/misdirection in law in their failure to take into account or considerations of psychological strain and threats to the Applicant that she might be killed;

(4)  error/misdirection in law in their failure to consider the obligation of the state to protect its citizens;

(5)  procedural impropriety in their failure to consider the concept of extended state acquiescence as expounded in TK v Jenkins; and

(6)  procedural impropriety in that they only focused on the fact that the Applicant had not suffered any physical torture by the NPA members without considering that she had suffered from mental stress and fear of being killed by the NPA members upon her return to her home country.”

11.  After hearing the applicant on 16 January 2020 and considering the materials before him, the Deputy Judge refused to grant leave to the applicant to apply for judicial review for reasons stated at paragraphs 11 - 16 of the Deputy Judge’s Decision:

“11.  These are however mainly just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the Board had erred in their decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was the concept of extended state acquiescence to her claim, or how did they fail to conduct sufficient inquiry into the relevant COI. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

12.  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 or her 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.

13.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 77 - 106 of its decision with the benefit of hearing her oral evidence and her answers to questions raised of her claim during her appeal hearing, and in the absence of any error of law 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 to challenge the finding of the Board.

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

15.  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.

16.  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.”

D.  Grounds for appeal

12.  The applicant’s grounds of appeal in her Notice of Appeal were that:

“1. Failure to consider my fear, what I had stated in my claim, that I would be face real risk once I would return to my country of origin.

2. Failure to proper assessed my fear under all applicable grounds I had stated in my affidavit in my leave application.” [sic]

13.  Pursuant to Master Tsui’s directions dated 9 November 2020, the applicant filed her written submissions on 18 December 2020.  Her arguments can be summarized as these: (a) the Board and the Director failed to make sufficient inquiries into the country of origin information which resulted in a failure to adhere to a high standard of fairness; and (b) the Board and the Director failed to take into account her fear and the fact that she suffered severe mental distress.  Other than that, she did not identify any errors in the Deputy Judge’s Decision.

14.  At the hearing, the applicant confirmed that she had nothing further to add to what have already been set out in the Notice of Appeal and the written submissions.

E.  Discussion

15.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

16.  First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

17.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

18.  Third, 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 the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

19.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

20.  Bearing these principles in mind, for the following reasons, we are of the view that this appeal has no merit.

21.  First, the grounds and arguments raised by the applicant in the Notice of Appeal and the written submissions are related to the Director’s and Board’s Decisions. Moreover, those arguments were considered but rejected by the Deputy Judge with the reasons as quoted above.  It is therefore also misconceived for her to allege that the Deputy Judge did not assess the grounds of review in her supporting affirmation.  In the premises, the applicant also failed to identify with any particularities as to why the Deputy Judge was wrong in rejecting these arguments in the Deputy Judge’s Decision.  These grounds are not viable grounds of appeal.  On this basis alone, her appeal must fail.

22.  Second and in any event, we have reviewed both the Board’s Decision and the Deputy 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 reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

F.  Disposition

23.  For all the reasons given above, we dismiss the appeal.