RE ALCARAZ NORA ARID

CACV 516/2020

[2021] HKCA 726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 516 OF 2020

(ON APPEAL FROM HCAL 577 OF 2018)

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Ms ALCARAZ Nora Arid, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 11 August 2020 refusing her leave to commence judicial review proceedings (“Judge’s Decision”).  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 27 March 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”).  Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 29 August 2016 and a notice of further decision dated 28 September 2017 (“Director’s 1^st Decision” and “Director’s 2^nd Decision” respectively and “Director’s Decisions” collectively).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of the Philippines now aged about 63, is a fear of being killed or otherwise harmed by her abusive husband Alcaraz Ruben Tamundong (“Ruben”) and his subordinates in a drug syndicate headed by a person known to the applicant as Sir Bong (“Bong”) if she should return to the Philippines.  The circumstances said to have given rise to such alleged fear were summarised in detail in paragraph 6 of the Director’s 1^st Decision and in gist in paragraph 7 of the Board’s Decision and [2] to [4] of the Judge’s Decision embodied in the Form CALL-1 dated 11 August 2020 [2020] HKCFI 1894 (“Form CALL-1”).

3.  Briefly:

(1)   The applicant and Ruben were married in 1975.  The marriage went well until about 1977 when the applicant became suspicious that Ruben was using drugs and when Ruben started to physically abuse her and their children. 

(2)   The applicant’s said suspicion was confirmed when Ruben and his friends began to use various drugs at their home.  The applicant had also heard a rumour in 1977 from their neighbours that Ruben was actively involved in a syndicate dealing in drugs.  Their leader was Bong who was a police officer in the Baquio City police station. 

(3)   The applicant tried to report Ruben’s domestic violence to the Baquio City police station but they refused to listen to her, saying that her complaint was nothing.

(4)   Ruben did not stop using or dealing in drugs after the family moved to Pangasinan.  He also continued to abuse the family on a daily basis.

(5)   The Pangasinan police station refused to take the applicant’s complaint because their household was still registered with a permanent address in Baquio City.

(6)   To stay away from Ruben, the applicant went to work in Bahrain for about 9 months in 1986.

(7)   To avoid Ruben’s abuse, in 2002, the applicant decided to leave the Philippines again, this time, by coming to work in Hong Kong. 

(8)   From 2002 to 2008, the applicant stayed in touch with her children who told her that Ruben had kept abusing them physically.  It was not until 2008 to 2010 that the applicant’s children stopped reporting to her any further incident of abuse by Ruben as they began to leave home after getting married.

(9)   In December 2008 and January 2010, the applicant twice returned to the Philippines for holidays.  She stayed at a friend’s house in Laguna.  Both times, Ruben had gone to the friend’s house to try to force the applicant to go home with him.  When she refused, he beat her up.  He even pointed a pistol at the applicant when she threatened to expose his and his associates’ drug trafficking activities.

(10)   She has over the years kept in touch with her daughter who tells the applicant that Ruben is constantly enquiring about her whereabouts and says that he would kill her if she returns to the Philippines.

Entry into Hong Kong, arrest and lodgment and processing of NRF Claim

4.  The applicant was last approved to work as a foreign domestic helper in Hong Kong until 31 December 2011.  However, her contract of employment was prematurely terminated on 14 February 2011.  She decided not to go back to the Philippines and did not leave Hong Kong within 14 days as required by the law and overstayed from 1 March 2011.  She surrendered to the Immigration Department on 17 June 2015.

5.  She raised the NRF Claim by written representation dated 25 February 2016.  She subsequently submitted a Non-refoulement Claim Form dated 27 July 2016.  In processing the NRF Claim, the Director’s representatives interviewed the applicant on 22 August 2016.    

Director’s Decisions

6.  By the Director’s 1^st Decision, the NRF Claim was found unsubstantiated under the grounds of torture risk[1], persecution risk[2] and “BOR 3” risk[3].

(1)   First, the past ill-treatment inflicted by Ruben on the applicant did not attain a minimum level of severity, which indicates a small future risk of serious harm upon the applicant’s return to the Philippines.  Her voluntary return to the Philippines after 9 months in Bahrain was inconsistent with a fear of being subjected to a real and imminent risk of being harmed there.  6 years had lapsed since the applicant last encountered Ruben.  It is not accepted that she would be subjected to any real or continuous risk of harm from Ruben.     

(2)   Second, the availability of state protection would further lower or even negate the level of risk (if any).  There is objective country of origin information (COI) showing that state protection and a functioning judicial system exist in the Philippines and that the authorities there do fight against corruption within the police and amongst government officials.

(3)   Third, reasonable internal relocation alternatives (e.g. Manila) are available in such a vast and populous country as the Philippines. It would be difficult for Ruben to locate the applicant throughout the country.

7.  Following the Director’s 1^st Decision, by a letter dated 11 July 2017, the applicant was invited to submit additional relevant facts on or before 25 July 2017 so that the Director could take them into account in considering the NRF Claim on any other applicable ground. Although the applicant did give a written reply dated 21 July 2017, it contained no new or additional information, in the absence of which, by the Director’s 2^nd Decision, the Director also rejected the NRF Claim for failing to establish a “BOR 2” risk[4].

Appeal to Board and Board’s Decision

8.  The applicant appealed to the Board after the Director’s 1^st Decision on 8 September 2016.

9.  The Board conducted a rehearing of the NRF Claim on 2 February 2018 at which the applicant, who was provided with suitable interpretation, testified before, and answered questions by, the Board.

10.  The Board dismissed the applicant’s appeal on all 4 applicable grounds[5] for non-refoulement protection.  It found many aspects of her evidence “incredible”, “exaggerated”, “inherently inconsistent” or “inconsistent with COI”.  In particular, the Board did not find the applicant’s account of Ruben’s drug abuse or dealing activities or domestic violence towards the applicant and their children credible.  The Board also came to the conclusions as the Director on the issues of the availability of state protection and reasonable internal relocation options.

Application for leave for judicial review and Judge’s Decision

11.  By a Notice of Application for Leave to Apply for Judicial Review issued against the Board under HCAL 577/2018 on 9 April 2018 (“Form 86”), the applicant sought leave to apply for judicial review of the Board’s Decision, without stating any ground for relief in either the Form 86 or the accompanying affidavit. 

12.  As the applicant did not request for an oral hearing, after considering the application on paper, the Judge refused leave.  His reasons can be found in [12]-[16] of the Form CALL-1:

“12. 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.

13. In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility as to her alleged fear of harm from her husband or the drug syndicate for the thorough and detailed analysis and reasoning set out in paragraphs 10-19 of its decision with the benefit of hearing her oral evidence and answers to questions raise of her claim during her appeal hearing, and in the absence of any error of law 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 to challenge the finding of the Board.

14. Furthermore, 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 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.

15. 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.

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

Appeal to Court of Appeal and grounds of appeal

13.  By a notice of appeal filed herein on 28 September 2020, the applicant appealed against the refusal of leave for judicial review, without stating any ground of appeal.  The supplemental notice of appeal filed on 3 February 2021 did not add anything useful as it merely reiterated that the applicant could not go back to the Philippines because her husband, who had abused her since 1977, would kill her.

14.  In breach of paragraph 3(1) of the directions given by the Registrar of Civil Appeals on 22 February 2021, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 4 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

15.  The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1.  The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the judges and the litigants.  Non-compliance 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 a 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 is treated as the abandonment of the right to an oral hearing.

16.  The hearing date on 10 May 2021 was therefore vacated and the applicant was debarred from lodging any written submission.  We will proceed to deal with the appeal on paper on the basis of the materials already filed with the Court.

Court of First Instance’s role in judicial review in non-refoulement claim

17.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

18.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[6]are met.  Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below.  In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)] and [14(4)].

Discussion

19.  The applicant has not in the notice of appeal or the supplemental notice of appeal before us identified any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was otherwise plainly wrong.  We cannot discern any either.

20.  The much repeated bare assertion that she would be killed by Ruben if she returns to the Philippines is not a ground of appeal, properly so called.  It is in any event not open to the applicant, as it is inconsistent with the Board’s said finding as to the incredibility of the applicant’s account.  In this regard, as summarised in [6], [7] and [10] above, the NRF Claim failed on the facts at both stages of the unified screening mechanism.  The questions whether the applicant would be at risk of life or torture if she is refouled to the Philippines and, if so, whether the danger would be lowered or negated by the availability of state protection and/or reasonable internal relocation options are all questions of fact within the province of the Board (after the Director).  

21.  The applicant had chosen not to point to any error of law, procedural unfairness or irrationality that might taint the Board’s dismissal of the centrepiece of her account, whether in the Form 86 or the accompanying affidavit.  That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and the Judge rightly dismissed it.

Disposition

22.  For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.