MORI DELLIA SIGAYLI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 270/2023, [2024] HKCA 17

On Appeal From [2023] HKCFI 2138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 270 OF 2023

(ON APPEAL FROM HCAL NO 284 OF 2019)

_______________

_______________

_______________

J U D G M E N T

_______________

Hon Ng J (giving the Judgment of the Court):

1.  This is an appeal by the Applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 18 August 2023, by which the Deputy Judge refused the Applicant’s application for leave to apply for judicial review (“the Leave Decision”) ([2023] HKCFI 2138).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 17 January 2019 (“the Board’s Decision”), dismissing the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) respectively dated 29 January 2015 and 28 November 2016 rejecting the Applicant’s non-refoulement claim (collectively referred to as “the Director’s Decisions”).

3.  We heard the appeal on 5 December 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. She last entered Hong Kong on the strength of her passport on 31 July 2012 and was permitted to remain as a foreign domestic helper until 21 June 2013. She was arrested by the police on 29 December 2012 for theft and her employment contract was terminated on the same day. She was convicted and was sentenced to 14 days’ imprisonment. By a Non-refoulement Claim Form dated 15 December 2014, she raised a non-refoulement claim on the basis that her life would be in danger if she returned to the Philippines as she would be harmed or killed by her former boyfriend for refusing to marry him. Factual details of the Applicant’s claim were concisely summarised by the Deputy Judge at [1] to [5] of the Leave Decision.

5.  By the Director’s Decisions, the Director rejected the Applicant’s non‑refoulement claim. His decisions covered all applicable grounds ie torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that her non‑refoulement claim was not substantiated.

6.  The Applicant then appealed against the Director’s Decisions to the Board. The Applicant attended two hearings before the Board on 15 and 22 December 2016 and was assisted with an interpreter qualified in the Tagalog and English languages. In essence, the Board accepted the Applicant’s claim of fear of harm from her former boyfriend for refusing to marry him and for putting an end to their relationship. That said, the Board found no evidence of any real intention of her former boyfriend to seriously harm or kill her so as to force her back into their relationship or that he would still have any adverse interest in her after all these years. The Board further found that it was merely a private dispute without any state involvement and that state protection would be available to the Applicant upon her return. Further, reasonable internal relocation was available to her. Accordingly, the Board found that her non-refoulement claim failed on all applicable grounds and dismissed her appeal.

The Leave Decision

7.  On 30 January 2019, the Applicant filed her Form 86 for leave to apply for judicial review against the Board’s Decision. In her Form 86, the Applicant did not state any ground of review. In her supporting affidavit, she only stated that she would like to reject and review the decision made by the Immigration Department on her case as they disregarded her dangerous situation. The Applicant attended an oral hearing before the Deputy Judge on 25 July 2023 and was assisted with an interpreter qualified in the Tagalog and English languages.

8.  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 [10] to [14] of the Leave Decision:

“10. On 30 January 2019 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 or her supporting affirmation of the same date in which she just stated that she rejects the decision as it disregarded her dangerous situation but without providing any further details or particulars as to how it did so or putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of her application other than just repeating her claim as before that it is still dangerous for her to return to 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.

11. 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.

12. In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decision that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part 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.

13. 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.

14. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly refuse her leave application.”

The Appeal

9.  On 29 August 2023, the Applicant filed a Notice of Appeal in support of her appeal against the Leave Decision. In her Notice of Appeal, she stated:

“I would like to reject and review the decision made by the court. They disregard my dangerous situation.”

10.  The Applicant lodged her Skeleton Argument on 6 November 2023. In those submissions, the Applicant claimed that the Board did not seem to have a firm grasp on the context in the Philippines and only relied on Country of Origin Information reports which were inadequate to understand the local context. The Applicant alleged that the Board’s assessment was erroneous and the procedure was problematic. Relying on the Human Rights Report of the Philippines 2022 published by the US Department of State, she further alleged that the system in the Philippines failed to protect individuals and that the Philippines was fraught with unlawful killings by the police and armed individuals. She further alleged that the Philippines was unsafe and that on 24 October 2023 her brother was gunned down.

11.  We heard the appeal on 5 December 2023. A Tagalog interpreter was present to provide language assistance. During the hearing, the Applicant confirmed she had nothing to add.

Discussion

12.  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].

13.  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.

14.  First, the Applicant’s submissions are all general bare contentions. Although she disagreed with the Leave Decision, nowhere in her Notice of Appeal or skeleton argument did the Applicant identify with particulars as to how the Deputy Judge had erred in reaching the Leave Decision. Her submissions are plainly not proper grounds of appeal. On this basis alone, her appeal must fail.

15.  Further, general assertions of her fear if refouled do not constitute proper grounds of appeal: see Re Farrukh Zaib [2020] HKCA 408 at [28]. More importantly, as repeatedly emphasised by the Court of Appeal, it is well‑established that the assessment of evidence, Country of Origin information 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, 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].

16.  The Deputy Judge, after rigorous examination and anxious scrutiny, could not find any error of law, procedural unfairness or any other reasonably arguable grounds to challenge the findings of the Board. There is no basis for us to interfere with the Leave Decision.

17.  For the above reasons, the Applicant’s appeal has no merits and we dismiss the appeal.