RE DALIGDIG MANNY FERNANDEZ

CACV 243/2024, [2025] HKCA 438

On Appeal From [2024] HKCFI 1379

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 243 OF 2024

(ON APPEAL FROM HCAL NO 1522 OF 2019)

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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 applicant’s appeal against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 4 June 2024 ([2024] HKCFI 1379)  (“the Leave Decision”)  refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 20 May 2019 (“the Board’s Decision”), whereby the Board dismissed his appeal against the decision of the Director of Immigration (“the Director”)  dated 21 December 2018 (“the Director’s Decision”)  refusing his non-refoulement claim.

2.  On 17 June 2024, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

BACKGROUND

3.  The applicant is a national of the Philippines.  He last arrived in Hong Kong as a visitor on 19 March 2018.  He overstayed since 3 April 2018 and he surrendered to the Immigration Department on 13 August 2018.  By his written submissions respectively dated 16 August 2018 and 19 September 2018, the applicant lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by the Philippine military force because they suspected that he supported the National People’s Army and was an informant for the military force.  Details of the applicant’s claim were summarised by the Judge at [4] - [8] of the Leave Decision.

4.  By the Director’s Decision, the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.  The applicant appealed against the Director’s Decision.  The applicant attended an oral hearing before the Board on 15 March 2019.  By the Board’s Decision, the Board dismissed his appeal.  The Board’s reasons were summarised by the Judge at [12] - [17] of the Leave Decision:

“12. The applicant appealed the Director’s Decision to the Board. On 15 March 2019, the Board conducted an oral hearing.

13. During the hearing, the applicant confirmed that he worked as a janitor in Manila from March to October 2017, in which he worked irregularly after the three men incident on 3 July 2017 [82] - [85]. He stayed in Metro Manila from November 2016 until September 2017 [86] while also constantly relocating within the country between July and September 2017 [88]. After staying in Macau for a month in September 2017, he returned to the Philippines and lived with a high school friend from October 2017 until he left for Hong Kong [89].

14. The applicant claimed that he relocated away from his hometown to stay with his relatives after receiving the threats by NPA in February 2016 [94]. After meeting the military in May 2016, they kept him under constant surveillance and visited him many times [96], [105]. Although the applicant no longer stayed in his hut at his hometown, he occasionally returned to visit his plants. During one of those visits on 5 November 2016, he was approached by two men while he was at his hut. He also claimed that the two men opened fire at him when he jumped out of the window [98] - [100].

15. The Board found the applicant’s claim in relation to the visit by the two mysterious men on 5 November 2016 unpersuasive [113]. It also noted inconsistency as to the time when he worked as a janitor in Manila and his place of residence [116] - [119]. The Board was of the view that both the military and the NPA would not waste resources to track him down and kill him simply because he provided food and drinks to the other side. In any event, the military could track him down by his ID when he was working as a janitor in Manila while NPA could not have come to Manila because they were an illegal organisation [120] - [121].

16. Based on the findings above, the Board considered that the applicant was not a witness of truth and had fabricated claims in relation to the military and NPA [110]. It did not accept that the applicant had been suspected or threatened by both the military and the NPA in the past. The Board concluded that the applicant was safe to return to the Philippines without facing any of the proscribed types of harm [122] - [128].

17.  The Board held that the applicant’s case failed to meet any of the requirements under Persecution risk [2] - [10], [132], Torture risk [11] - [15], [129] or BOR 2 and BOR 3 risk [16] - [20], [130] - [131]. It therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.”

THE JUDGE’S DECISION

6.  On 4 June 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  He did not provide any specific ground of review in his Form 86 or supporting affidavit.  As he did not request for an oral hearing, the Judge determined his application on paper.

7.  By the Leave Decision, the Judge dismissed his application for leave to apply for judicial review.  His reasons are set out at [20] - [25] of the Leave Decision:

“20.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

22.  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.’

23.  For the reasons above, the Board disbelieved the applicant’s evidence and dismissed his appeal. In my view, the Board was entitled to form its views on the evidence before it. The applicant has not been able to raise any valid ground to challenge the Board’s Decision. There is no reason for this Court to interfere with the Board’s finding of the facts.

24.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

25.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

THIS APPEAL

8.  In his Notice of Appeal filed on 17 June 2024, the applicant merely stated that the Judge did not consider his application and that he wanted to appeal to get justice.

9.  Pursuant to the directions of the Registrar of Civil Appeals dated 17 June 2024, the applicant lodged his written submissions on 2 July 2024.  In those submissions, he repeated the factual background of his non-refoulement claim and merely asserted that “all asylum seekers have big problem” without giving specific particulars.

DISCUSSION

10.  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 will 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 decision maker’s decision afresh as if it were a fresh application for judicial review (see Nupur Mst, supra, at [14(6)]).

11.  The applicant’s appeal has no substance.  All his allegations are general and bare assertions without any specific particulars or evidence in support.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  More importantly, he also fails to specify any error in the Leave Decision.  His assertions are not proper grounds of appeal.

12.  Accordingly, the applicant’s appeal has no merit and is hereby dismissed.