D’SOUZA MARK PHILLIP GARCIA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 128/2023, [2023] HKCA 1232

On Appeal from [2023] HKCFI 1001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 128 OF 2023

(ON APPEAL FROM HCAL NO 1438 OF 2022)

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JUDGMENT

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

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge To (“the Judge”) dated 17 April 2023 (“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 21 November 2022, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 September 2022.

BACKGROUND

2.  The Applicant is a national of the Philippines.  He arrived in Hong Kong on 7 May 2014 on a dependant visa to join his father, a Hong Kong permanent resident.  His visa was last extended to 25 January 2021.  On 8 August 2020, he was arrested for offences of burglary, handling stolen goods and obtaining property by deception, for which he was subsequently convicted and sentenced to a total term of 32 months’ imprisonment.  He was released from prison on 2 June 2022, and a deportation order was made against him on 26 June 2022.  He lodged his non-refoulement claim by way of written significations dated 3 and 8 August 2022.  In gist, he claimed that, if returned to the Philippines, he would be harmed or killed by his girlfriend’s family for having made her pregnant.  Details of the Applicant’s claim have been summarised by the Judge at §§4-8 of the CALL-1 Form.

3.  By a Notice of Decision dated 27 September 2022, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s decision to the Board.  On 21 November 2022, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”).  The Board’s reasons for its decision have been summarised by the Judge at §§9-14 of the CALL-1 Form, as follows:

“[9] The Applicant testified before the Board. His father also attended the hearing and answered the Board’s questions. Despite many inconsistencies in his evidence, the Board gave him the benefit of doubt and accepted the centerpiece of his case that he had a romantic relationship [with] his girlfriend, her family may have political connection and her family threatened to kill him.

[10] His evidence before the Board that he instigated cessation of contact with his girlfriend is inconsistent with his assertion in the NCF that he tried to contact her many times but without success. His evidence that he cut off all contacts with people in the Philippines, including his trusted cousin is incredible. The Board also found that his girlfriend’s uncle is no longer a mayor and that his power is likely to have diminished. The Board considered the Applicant not credible and had embellished his evidence to boost his claim of fear and risk of harm.

[11] The Board did not accept the Applicant’s claim that his girlfriend’s family had filed false drug charges against him. His claim about the false charges is based on vague and hearsay evidence from his cousin who had not even read the warrant against him. The Board considered it highly [improbable] that his girlfriend’s family would risk taking such a course of action which would have the effect of further tarnishing their reputation by revealing that a member of this prestigious political family had an unborn child by a drug trafficker.

[12] Given the relative young age of the Applicant, his health and background, the Board found it not unreasonable for him to relocate to other places in the Philippines, such as Cebu to avoid the threat. Furthermore, the Board was not convinced that there is any real risk that his girlfriend’s family would even be aware of his return to the Philippines, let alone to locate him.

[13] In view of the above and the passage of time, the Board found that the risk of harm from the Applicant’s girlfriend’s family is only a remote or speculative one.

[14] Applying the law applicable to non-refoulement protection under the USM, the Board found that the Applicant had failed to discharge the burden of proving his entitlement to protection under any of the four applicable grounds under the USM.  Hence, the Board dismissed his appeal.”

THE JUDGE’S DECISION

5.  On 8 December 2022, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground for seeking relief was given in the Form 86.  In his supporting affirmation filed on the same date, the Applicant merely alleged that the Board had disregarded his dangerous situation.

6.  On 17 April 2023, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[16] The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, the only complaint he raised was that the Board disregarded his dangerous situation. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to the Philippines. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

[17]  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  Though the Board accepted the centerpiece of the Applicants’ claim, it found that the risk of harm from his girlfriend’s family is only a remote or speculative one.  On the basis of credible and authoritative country of origin information, the Board was also satisfied that it was not unreasonable for the Applicant to relocate to other parts of the Philippines to avoid the risk, if the risk turns out to be real.  It was on that basis that the Board found that he had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.  Accordingly, the Applicant’s application for leave to apply for judicial review is refused.”

THIS APPEAL

7.  In his Notice of Appeal dated 27 April 2022, the Applicant raised the following ground of appeal:

“… the gravity of my circumstances have [not] been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.”

8.  In his supporting affirmation filed on the same date, the Applicant stated that he understood that there was a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review, and he had been informed that “the Director of Immigration and the Adjudicator did not see the grounds to reverse their decisions”.

9.  In his 8-page written submissions filed on 15 May 2023, the Applicant alleged (inter alia) that the Board failed to discuss the issue of risk and erred in law in failing to analyse the substance of his claim or consider relevant country of origin information (“COI”), and the Board’s Decision did not meet the high standard of fairness and was unfair.

10.  The Applicant did not appear at the hearing of the appeal.

DISCUSSION

11.  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’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

12.  Further, the assessment of evidence, COI, 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.

13.  The Applicant did not put forward any ground of judicial review in the Form 86 or his supporting affirmation.  He is not entitled to raise new grounds in support of his application for leave to apply for judicial review, or rely on them as grounds of appeal against the Judge’s decision.  In any event, the Applicant’s complaints in his written submissions relate to matters falling within the province of the Board and, for the reasons given in paragraph 12 above, cannot properly ground an application for leave to apply for judicial review of the Board’s Decision.  The Applicant’s complaint that he should be given an opportunity to plead his case properly has no substance.  He did not request for an oral hearing of his application for leave to apply for judicial review.  The Judge was entitled to deal with the leave application on paper without an oral hearing.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review. 

14.  The Applicant’s appeal against the Order has no merit and is dismissed.

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.