|
CACV 187 /2022
[2022] HKCA 1265
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 187 OF 2022
(ON APPEAL FROM HCAL NO 909 OF 2019)
________________________
| RE |
VILLASANTA DAISY LUMBERA |
Applicant |
________________________
Before: Hon Yuen JA and Lisa Wong J in Court
Date of Hearing: 8 August 2022
Date of Judgment: 29 August 2022
________________________
J U D G M E N T
________________________
Hon Lisa Wong J (giving the Judgment of the Court):
The appeal
1. This is an appeal against the order made by Deputy High Court Judge K W Lung (“Judge”) on 3 May 2022 refusing to grant leave for judicial review (“Judge’s Decision”). The intended application for judicial review sought to quash the decision (“Board’s Decision”) of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office (“Board”) given on 28 March 2019, which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”) by a notice of decision dated 6 July 2018 (“Director’s Decision”).
Basis and allegations in support of NRF Claim
2. The basis of the NRF Claim made by the applicant, a national of the Philippines, is a fear of being imprisoned for failure to repay debts owed to 2 banks if she were to go back to the Philippines.
3. The circumstances giving rise to such alleged fear have been set out in paragraph 9 of the Director’s Decision, paragraphs 36 to 92 of the Board’s Decision and [4] and [5] of the Judge’s Decision embodied in the Form CALL-1 [2022] HKCFI 1211.
4. Briefly, the applicant claims that:
(1) In about 2000, she obtained, or acted as guarantor of, a loan from the Jose P Laurel Bank at the request, and for the use, of her cousin/colleague Lenilyn. Lenilyn did not honour her promise to the applicant to repay the loan.
(2) In about 2002, the applicant herself obtained a loan from the Land Bank. She defaulted in repayment of this loan since 2006 after she lost her teaching position.
(3) The banks had written demand letters to the applicant and asked her to discuss when and how she could repay the loans. However, they did not physically harm the applicant.
(4) In fear of being sent to jail for failure to repay the loans, the applicant decided to leave the Philippines in 2009.
Overstaying in Hong Kong and lodgment of claims against torture and for non-refoulement protection
5. The applicant landed in Hong Kong as a visitor on 3 September 2009. She has been overstaying since 18 September 2009. She was arrested by the police on 25 February 2010. She was later convicted of breach of condition of stay by overstaying, for which she was given a suspended sentence.
6. The applicant initially lodged a torture claim[1]. In support of such claim, she completed and submitted a torture claim form dated 26 March 2013 and attended a screening interview by representatives of the Director on 24 April 2013. The Director refused the applicant’s torture claim on 3 May 2013. The applicant’s appeal against the rejection of her torture claim to the Board was dismissed on 28 June 2013.
7. In the meantime, the applicant raised the NRF Claim, in support of which she completed and submitted a supplementary claim form dated 14 June 2018 and attended another interview at the Immigration Department on 4 July 2018.
Director’s Decision
8. As the applicant’s torture claim had already been disposed of, the Director, taking into account the information provided by the applicant as aforesaid, found the NRF Claim unsubstantiated under any of the other applicable grounds for non-refoulement protection under the unified screening mechanism (“USM”): persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].
Appeal to Board and Board’s Decision
9. The applicant appealed to the Board.
10. The Board conducted a rehearing of the NRF Claim on 9 January 2019, which the applicant attended to give evidence and answered the Board’s questions through an interpreter.
11. The Board dismissed the appeal on all 3 grounds rejected by the Director. The Board did not find the applicant a witness of truth. Indeed, it came to the view that she had fabricated her case. It did not accept that the applicant owed money to anybody in the Philippines. In any event, her claimed fear of being imprisoned for her debts to the 2 banks is inconsistent with the country of origin information which shows that the constitution of the Philippines contains a bill of rights that prohibits imprisonment for debt.
Application for leave for judicial review and Judge’s Decision
12. By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 909/2019 on 3 April 2019, the applicant applied for leave for judicial review of the Board’s Decision Neither the Form 86 nor the supporting affidavit put forward any proper ground for judicial review. The applicant merely repeated her reluctance to return to the Philippines because she did not want to be in jail.
13. The applicant did not request for an oral hearing. After considering the material before him, the Judge refused leave on paper in the absence of any error of law, procedural unfairness or irrationality in the Board’s Decision for the reasons were set out in [12] – [17] of the Form CALL-1:
“12. 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
14. 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.’
15. The Board has given reasons for its Decision. There is no valid reason from the applicant to challenge the Board’s Decision.
16. 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.
17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”
Appeal to Court of Appeal - grounds of appeal and submissions
14. By the notice of appeal filed herein on 10 May 2022, the applicant appealed against the refusal of leave for judicial review on the grounds that (1) she would face hardship if she should return to her home country; and (2) that the Board had made groundless speculations by relying on non-officially recognised or hearsay news and outdated cases.
15. By her written submission dated 17 June 2022, the applicant referred to ST v Director of Immigration (sic)[5] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his/her claim.
16. The applicant appeared in person at the hearing of the appeal on 8 August 2022. She had nothing to add.
Applicable legal principles
Court of First Instance’s role in judicial review in non-refoulement cases
17. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].
Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement cases
18. An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2) & (4)].
Discussion - Appeal has no merit
19. Neither ground raised in the notice of appeal has any merit.
20. First, the question whether the applicant would be at risk of violation of right to life or torture if she is refouled to the Philippines is a question of fact within the province of the Board (after the Director). The applicant’s much-repeated bare assertion that she would be in danger if she should return to the Philippines is inconsistent with the findings made at both stages of the USM. The applicant had not in the Form 86 or the supporting affirmation before the Judge identified, with any or any sufficient particulars, any error of law, procedural unfairness or irrationality on the part of the Board in finding against her. That being the case, the proposed judicial review was hopeless and leave was rightly refused.
21. Second, the applicant did not particularise the groundless speculations that she said the Board had made or pinpoint the news or cases that wrongly led the Board to such speculations.
22. Turning to the written submissions and the well-established legal principles cited therein, there was no attempt by the applicant to elaborate on whether and, if so, how they had not been honoured in the processing of the NRF Claim.
23. In short, the applicant did not in the notice of appeal or the submission before us (whether written or oral) identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. We cannot discern any either.
24. In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.
Disposition
25. For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.
| (Maria Yuen) |
(Lisa Wong)
|
| Justice of Appeal |
Judge of the Court of First Instance |
The Applicant (Appellant), acting in person
[1] Pursuant to article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[2] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[3] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“HKBORO”).
[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the HKBORO.
[5] The correct citation should be ST v Betty Kwan.
|