RE GLORIA DUMARAN JAMERO

CACV 452/2020

[2021] HKCA 824

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 452 OF 2020

(ON APPEAL FROM HCAL NO. 485 OF 2018)

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J U D G M E N T

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

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan in which he refused to grant leave to the applicant to apply for judicial review.

2)  Factual background

2.1  The applicant is a national of Philippines. She arrived in Hong Kong on 2 April 2012 by using a Philippine passport in another’s name.  She was arrested and later convicted and imprisoned.  While she was in prison she presented her torture claim.  After her torture claim was refused, she raised her non-refoulement claim.

2.2  The basis of the applicant’s claim is that she would be harmed or killed by members of the New People’s Army (‘NPA’) for leaving the group.

3)  The Director’s Decision

3.1  The Director of Immigration (‘the Director’) decided against the applicant’s torture claim on 7 April 2017. The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (right to life) risk (‘BOR 2’) as well as other statutory and convention rights against persecution (‘the Director’s Decision’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 18 April 2017.  After a hearing held on 13 November 2017, the applicant’s claim was dismissed by the Board on 16 March 2018.

4.2  The Board held that the NPA did not seem to have bothered with the applicant from 1991 to 2001.  The applicant’s version of events was unclear as to whether she stayed in the Philippines for a few years or it was only for a few months before she either departed to Hong Kong or Macau.  The applicant’s reliance on hearsay evidence was not given weight according to the Board’s findings.  There was no evidence to suggest that the NPA was still looking for the applicant in 2009.

5)  Decision of the Judge

5.1  The applicant filed her Form 86 seeking for leave for judicial review on 26 March 2018.  In her supporting affirmation, she raised irrationality, procedural impropriety, failure to provide adequate reasons, failure to consider extended form of state acquiescence, and other reasons for applying for leave.

5.2  On 23 July 2020, the Judge held that the applicant’s assertions are all broad and vague containing several key words and phrases but without particulars or specifics on how they applied to her case.  He held that the applicant’s case was rejected mainly due to the Board’s detailed findings against the applicant’s credibility.

6)  Grounds of appeal

6.1  The applicant’s notice of appeal merely stated that she was appealing because the Judge had failed to consider the significance of the threat to the applicant.

6.2  In the applicant’s written submission, she complained that the Judge, the Board and the Director failed to consider the danger that she will encounter if refouled.  She stated that she had provided circumstantial evidence in support of her case but it was not considered.  In her written submission handed up at the hearing of the appeal she repeated her right to life.

7)  Our view

7.1  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]. 

7.2  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.  Further, findings of fact are the task of the Board and the Director.

7.3  We see no basis to disturb the Deputy Judge’s Decision.  Accordingly, the appeal is dismissed.