VILORIA NELSON JARATA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 421/2022

[2023] HKCA 220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 421 OF 2022

(ON APPEAL FROM HCAL 2470/2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge K. W. Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 18 October 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 3198).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 12 October 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 17 October 2017 rejecting the applicant’s non-refoulement claim.

3.  We heard the appeal on 1 February 2023.  After the hearing, we reserved our judgment to be handed down in writing.  This is what we do now.

Background

4.  The applicant is a national of the Philippines. He entered Hong Kong on 29 January 2011 and was permitted to remain as a visitor until 12 February 2011.  He overstayed and was arrested by the police on 25 May 2011.  It transpired that he had previously raised a torture claim on 8 March 2011, which was rejected by the Director on 25 October 2011.  The applicant’s appeal against that decision was dismissed by the Board on 13 December 2011.  No further action was taken by the applicant with regards to the Board’s dismissal of his appeal.

5.  Separately, the applicant raised a non-refoulement claim on 12 April 2017 on the basis that he would be harmed or killed by one Wilson Taca (“WT”) and his accomplice should he be refouled.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] and [5] of the Leave Decision.

6.  By a Notice of Decision dated 17 October 2017 (“the Director’s Decision”), the Director rejected the applicant’s non‑refoulement claim.  The decision covered all applicable grounds other than the torture risk^[1], i.e. the BOR2 risk^[2], BOR3 risk^[3] and persecution risk^[4].  Taking into account all relevant circumstances, the Director considered that the applicant’s non‑refoulement claim was not substantiated.

7.  The applicant then appealed against the Director’s Decision to the Board.  The applicant attended the hearing on 26 July 2018.  Having assessed and considered the totality of the evidence, the Board found, inter alia, that the applicant would not face any real risk of harm from WT or his accomplice should he be refouled.  Alternatively, after considering the applicant’s case and the relevant Country of Origin information (“COI”), the Board considered that state protection and internal relocation in the Philippines would be available to the applicant.  Accordingly, the Board considered that the applicant had failed to substantiate his claim on all applicable grounds (except the torture risk) and dismissed his appeal.

The Leave Decision

8.  On 6 November 2018, the applicant applied for leave to apply for judicial review against the Board’s Decision.  In his Form 86 and his supporting affidavit, the applicant did not set out any ground of review.

9.  As the applicant did not request for an oral hearing, the Deputy Judge considered and determined his application on paper.

10.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out at [12] to [18] of the Leave Decision:

“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, §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. There is no valid reason 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 he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

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

The Appeal

11.  On 25 October 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision.  In the Notice of Appeal, he set out his purported grounds of appeal, which are essentially that the Board had failed to consider:

(1)  the fact that he would face “serious risk upon refoulement”;

(2)  the COI and failing to find that there would not be adequate state protection available to him in the Philippines; and

(3)  his claim “under BOR 3 risk”.

12.  Pursuant to the directions made by the Registrar of Civil Appeals on 15 November 2022, the applicant lodged his written submissions on 14 December 2022.  In those submissions, the applicant effectively repeated the matters stated in his Notice of Appeal, with the added complaint that the Deputy Judge had allegedly failed to inquire into his “fear” of his enemies and that the Board did not “observe [his] fear properly”.

13.  We heard the appeal on 1 February 2023.  A Tagalog interpreter was present to provide language assistance.  During the hearing, the applicant confirmed he had nothing to add to his written materials.

Discussion

14.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

15.  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.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

16.  At the outset, most if not all of the applicant’s allegations are vague, bare contentions and without basis in or support by evidence.  Although he disagreed with the Leave Decision, nowhere in his Notice of Appeal or written submissions did the applicant identify with specific particulars as to how the Deputy Judge had erred in reaching the Leave Decision.  Accordingly, his submissions are plainly not proper grounds of appeal.  On this basis alone, his appeal must fail.

17.  Further, general assertions of the applicant’s fear if refouled do not constitute proper grounds of appeal: see Re Farrukh Zaib [2020] HKCA 408 at [28].  This also renders the applicant’s complaints against the Judge and the Board, namely that they had failed to make inquiries into his fears, unmeritorious if not irrelevant.

18.  We note that the applicant has raised grounds (being complaints against the Board) in the Notice of Appeal which have not been raised before the Deputy Judge.  It is not the practice of this Court to entertain new grounds not canvassed in the Court below.  See: Orense Marian Masangkay [2022] HKCA 33 at [7]; Re Masih Robin [2022] HKCA 1828 at [18].

19.  Even if we were to allow the applicant to advance these grounds, we are of the view that they are unmeritorious as it is apparent from the Board’s Decision, which affirmed the Director’s Decision and the reasoning therein, that the adjudicator had considered the relevant COI before reaching his conclusion on the availability of state protection.  Further, the adjudicator also found (at [41] of the Board’s Decision) in respect of the BOR3 risk that the applicant had failed to adduce evidence to support his claim under this ground. 

20.  In any event, as repeatedly emphasised by the Court of Appeal, it is well‑established that the assessment of evidence, COI and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  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 Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].

21.  The Deputy Judge, after rigorous examination and anxious scrutiny, could not find any error of law or procedural unfairness or reasonably arguable grounds to challenge the findings of the Board.  We see no basis to interfere with the Leave Decision.

22.  For the above reasons, the applicant’s appeal has no merit and we dismiss the appeal.