RE BOLENCIS EDNA BELTIAR

CACV 274/2021

[2021] HKCA 1485

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 274 OF 2021

(ON APPEAL FROM HCAL NO 957 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 12 May 2021[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑refoulement Claims Petition Office (“Board”) dated 24 May 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 27 July 2017 rejecting the applicant’s non‑refoulement claim.

Background

2.  The applicant is a Philippine national.  She last arrived in Hong Kong on 26 December 2012 and was permitted to remain and work as a domestic helper until 8 January 2013 or two weeks after termination of contract.  On 5 February 2013 she was arrested for a criminal offence.  After serving her prison sentence for 2 months and upon being referred to the Immigration Department for deportation, the applicant lodged a non‑refoulement claim on 2 September 2014. 

3.  The applicant’s claim was based on the fear that, if she returned to the Philippines, she would be harmed or even killed by creditors for failing to repay her loans.  The factual background was set out at [3] to [11] of the Board’s decision.

4.  By notice of decision dated 27 July 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against her.  The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 16 March 2018, during which the applicant gave testimony.  Due to material inconsistencies and implausible aspects found in her narrative, the Board considered that the applicant had exaggerated the risk of danger in the event of refoulement.  The Board further found that, even on the applicant’s factual account, neither she nor her mother had ever been harmed, nor had her brothers been seriously hurt.

6.  As a result, the Board found that there was no real risk of harm in the event of refoulement.  The Board also considered that sufficient state protection was available and that internal relocation was viable.  Thus the Board dismissed the applicant’s appeal on 24 May 2018 on all the applicable grounds.

Decision of the court below

7.  On 28 May 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  However, she did not specify any particular grounds for judicial review in her Form 86 or the supporting affidavit.

8.  Following a hearing on 26 January 2021 at which the applicant appeared in person before the Judge, on 12 May 2021 the Judge gave his decision refusing to grant leave to apply for judicial review.  The reasons were set out at [9]‑[12] of the Form CALL‑1 as follows:

“ 9. On 28 May 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affidavit of the same date she merely attached a copy of the decision and the documents from her hearing bundle for her appeal before the Board but without putting forward any proper ground for her intended challenge, nor could [she] do so at the hearing of the application when she merely repeated her claim that she still has problems in her home country. As such and in the absence of any error of law or irrationality 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 for her intended challenge.

10. 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 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.

11. In the Applicant’s case, the fact is 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 parts 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.

12. 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.”

Appeal to this Court

9.  On 24 May 2021, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal are that:

(1)  the Board failed to meet its duty to make sufficient inquiries into country of origin conditions and adopted a passive approach, in contravention of the required high standards of fairness;

(2)  the Board failed to take into account relevant considerations or took into account irrelevant considerations, in particular the Board failed to give due regard to:

(a)  the fact that her life continues to be in danger and under threat from her enemies, who will harm her if she returns to her country;

(b)  the fact that she was placed in great mental distress as a result of being targeted to be killed or traced wherever she would hide in her country, and could not get protection from the authorities; and

(3)  though her claim might be a private and personal matter, there would still be a real risk of harm upon refoulement.

10.  The applicant lodged written submissions for the appeal on 27 August 2021.  In those submissions she substantially reiterated the above grounds of appeal, but with the amendments summarized below:

(1)  Ground (1) is amended to argue that the Board failed to properly assess the claim, and that the Judge did not focus on the applicant’s fear and the observed country of origin conditions, such that she would be in danger upon refoulement;

(2)  Ground (3) is amended to argue that the claim is not a personal or private dispute and that in the judgment there are no clear directions as to why she would not be subject to persecution upon refoulement.

11.  The applicant did not provide any details or particulars in support of her grounds of appeal or as to any alleged errors made by the Judge.  At the oral hearing of the appeal she confirmed that she had nothing to add to the written materials.

Legal principles

12.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non‑refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(1)  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.  Although in non‑refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and will only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or his decision was otherwise plainly wrong.

(3)  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 this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

Discussion

13.  As mentioned earlier, the applicant did not in her Notice of Appeal or submissions provide any particulars in support of her grounds of appeal, or as to the alleged error(s) in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

14.  As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

15.  The applicant has made certain allegations against the Director and the Board in the notice of appeal in this Court. These grounds were however not advanced in the Form 86 or the supporting affidavit in the court below.  Further they are merely general assertions that are not substantiated on a proper examination of the available materials.

16.  In the present case, the Board rejected the applicant’s claim for non‑refoulement protection based on its finding that, even on the applicant’s factual account, neither the applicant nor her mother had ever been harmed, nor had her brothers been seriously hurt.  As such, the Board found that there was no real risk of harm in the event of refoulement. The Board also considered sufficient state protection was available and that internal relocation was viable.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds.  In the present case, there are no such valid grounds.

17.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified and that he was right to refuse leave.  There is no reasonably arguable ground to challenge his decision.

18.  For these reasons, this appeal is dismissed.

[1]   [2021] HKCFI 1361, HCAL 957/2018.

[2]   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).

[3]   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 and its 1967 Protocol.

[4]   This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[5]   This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).