RE LUMITAP, DOLORES DALUYEN

CACV 352/2019

[2019] HKCA 1328

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 352 OF 2019

(ON APPEAL FROM HCAL 2887/2018)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) on 19 July 2019 refusing leave to the applicant to apply for judicial review. 

Background

2.  The applicant is a national of the Philippines.  She had worked in Hong Kong as a domestic helper since March 2016.  Her last arrival was on 20 September 2016 with a permission to remain for 2 years, or two weeks after the termination of her employment contract.  Her employment contract was prematurely terminated on 20 March 2017, but she did not depart upon the expiry of her permission to stay.  She overstayed illegally.  She surrendered to the Immigration Department on 5 April 2017 and lodged her claim for non-refoulement protection by written significations dated 4 and 25 August 2017.

3.  The applicant’s claim was based on the fear that, if refouled, she would be harmed by her abusive ex-boyfriend.  The brief facts of this case were summarized by the Judge in [4] of the Form CALL-1 ([2019] HKCFI 1800).  In addition to what was summarized by the Judge, it was also her case that, if returned to the Philippines, her father would harm her because she divorced her ex-husband and had chosen to work overseas. 

4.  The Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds, including the risk of violation of the absolute and non-degorable rights guaranteed under the Hong Kong Bill of Rights (particularly the BOR 2 risk[1] and the BOR 3 risk[2]), the persecution risk[3], and the torture risk[4]. By a notice of decision dated 12 February 2018[5], the Director determined the claim against the applicant.

5.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) against the Director’s decision.  An oral hearing was held on 22 June 2018, where the applicant elected to give evidence.  By a decision given on 2 October 2018⁵, the Board dismissed the applicant’s appeal/petition.  Having heard the applicant, the Board accepted that she was a truthful witness.  However, the Board considered that it was only a private matter between the applicant and her ex-boyfriend and her father[6]. State protection was considered to be reasonably available[7]. Nor was there any evidence suggesting a pattern of gross flagrant or mass violations of human rights in the Philippines[8].  Internal relocation was found to be a viable option for the applicant[9].  Accordingly, the Board concluded that there were no substantial grounds to believe that the applicant would face a real risk of being ill-treated if she returned to the Philippines.

The Judge’s decision

6.  By a Form 86 filed on 17 December 2018, the applicant sought leave to apply for judicial review against the decision of the Board. The grounds of review were summarized by the Judge in [11] of the Form CALL-1.

7.  Upon the request of the applicant, an oral hearing was held on 17 May 2019.

8.  As mentioned earlier, the Judge refused to grant leave for the applicant to apply for judicial review.  His reasons in refusing leave were set out in the Form CALL-1 as follows:

“ 1. The applicant appeared before me. She confirmed that she had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. She also confirmed that she understood the Director’s Decision as her lawyer had explained it to her. She could read English herself to understand the hearing bundle and the Board’s Decision.

2. I explained the Board’s findings above to her and asked if she had any comments. She said that she had no comments on them.

3. Those grounds above are either inconsistent with what she said in court or they are her opinions without any evidence in support of them.

4. The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.”

The appeal

9.  On 31 July 2019, the applicant filed a notice of appeal against the Judge’s decision.  She stated in the notice that:

“ … [she] will face hardship if [s]he is to return back to h[er] home country and that the [Board] has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” (sic)

10.  The applicant lodged her written submissions on 9 October 2019.  In it, she quoted some passages from ST v Director of Immigration[10] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the “high standards of fairness” required of a decision-maker in the determination of a non‑refoulement claim.  She further submitted that the Board acted in a procedurally unfair manner and failed to access her credibility properly.  She also complained about the Wednesbury unreasonableness of the decision-makers, citing Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 in support.  Finally, the applicant referred to section 37ZT of the Immigration Ordinance (Cap 115).

11.  We heard the appeal on 25 November 2019.

General principles

12.  For the purpose of this appeal, we would highlight the following salient propositions concerning appeals in non-refoulement cases:

(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.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (“COI”) materials, 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, 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 before, and rejected, by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or 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 the Court of Appeal to examine the 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).   

Discussion

13.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection in Hong Kong because of its assessment that though there was a small but real risk of her being subjected to ill-treatment if returned to the Philippines, state protection was available and internal relocation was a viable option. 

14.  As we explained above, the assessment of the availability of state protection and viability of internal relocation are within the province of the Board.  The court will not interfere with these findings unless an applicant can demonstrate that these findings are reversible on public law grounds.  Having considered the materials available before him, the Judge found that the applicant failed to demonstrate any of such grounds.

15.  In this appeal, the ground stated in the notice of appeal only put forward general assertions and did not pinpoint any specific piece of unreliable information in the COI material relied upon by the Board. Neither does it pinpoint any error on the part of the Judge.

16.  We cannot discern how the legal authorities cited by the applicant in her skeleton submission can avail her in this appeal.  Nor can we see the relevancy of section 37ZT, which concerns the late filing of notice of appeal to the Board.

17.  Plainly, the applicant failed to pinpoint any viable arguments to reverse the Judge’s decision.

18.  Having considered the materials available before us, we agree with the Judge that leave should not be granted to the applicant to apply for judicial review.

19.  For these reasons, we dismiss the appeal.