RE DULANO MICHELLE GALLENERO

CACV 422/2023, [2024] HKCA 347

On Appeal From [2023] HKCFI 3057

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 422 OF 2023

(ON APPEAL FROM HCAL 1492 OF 2023)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 12 December 2023 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 26 July 2023 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 15 May 2023 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines. She entered Hong Kong as a foreign domestic helper in August 2019, but she had overstayed since the termination of her employment and was arrested by the police in February 2023. Thereafter, she raised a non-refoulement claim on 15 March 2023.

3.  The applicant’s claim was based on her fear of being harmed or killed by her former boyfriend should she be refouled. The details of the applicant’s claim have been summarised by the Judge at [3] and [4] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 15 May 2023 i.e. the Director’s Decision, the Director rejected the applicant’s claim. The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.  The applicant appealed against the Director’s Decision to the Board, for which an oral hearing was held on 12 July 2023 and at which the applicant attended in person and was assisted by an interpreter. On the evidence, the Board found that the applicant would not face a real risk of harm from her former boyfriend should she be refouled. In any event, there were suitable options of internal relocation available to the applicant eg Manila. The applicant’s appeal was dismissed by the Board’s decision dated 26 July 2023 i.e. the Board’s Decision, which covered all applicable grounds for a non-refoulement claim.

The Judge’s decision

6.  The applicant filed a Form 86 on 23 August 2023 seeking to judicially review the Board’s Decision, without setting out any grounds for review.

7.  In her supporting affidavit filed on the same date, the applicant merely exhibited a copy of the Board’s Decision and asked for an “extension to stay protection under non-refoulement claim”.

8.  After summarising the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused leave to the applicant to apply for judicial review. The Judge gave the following reasons in refusing leave at [13] to [18] of the CALL-1 Form:

“13. 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).

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15. 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.”

16. The Board had, for the reasons given above, rejected the applicant’s claim for the reason that she failed to establish that she will be subjected to any real risk of harm if she returns to the Philippines.

17. There is no valid ground from the applicant to challenge the Board’s Decision.

18. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

Grounds for appeal

9.  In the Notice of Appeal filed on 19 December 2023, the applicant contended as a ground of appeal that “I had some points but the High Court did not consider any thing”.

10.  In breach of the directions made by the Registrar of Civil Appeals on 23 January 2024, the applicant failed to lodge skeleton submissions within the time specified. Hence, the hearing date of 9 April 2024 was vacated and the appeal was dealt with on paper on the basis of the materials already filed with the court.

11.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1. The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process. The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants. The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing. Nowadays, this court no longer permits unfocused oral presentation of material at an oral hearing. In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions. Non-compliance with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

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 the decision of the Board afresh as if it is a fresh application for judicial review.

14.  As can be seen from the above, the applicant has failed in her Notice of Appeal to identify, with particularity, any error on the part of the Judge and thus failed to raise any viable ground of appeal. It is necessary for the applicant to identify and substantiate some error on the part of the Judge that would justify this court in intervening. The applicant has wholly failed to do so. On this ground alone, the appeal must fail.

15.  In any event, in her application to the Judge, the applicant had failed to provide particulars as to any respects in which the Board was acting illegally or unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

16.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board. It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board. The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return. The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established: See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163. The Judge considered the decisions of both the Director and the Board and found no basis for intervening. In our view, he was clearly correct to do so.

17.  There is therefore no merit in the appeal and we dismiss it accordingly.