Case Detail

CACV 308/2018

[2019] HKCA 111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 308 OF 2018

(ON APPEAL FROM HCAL NO 888 OF 2017)

________________________

BETWEEN
	MALIWANAG NESTOR MARCIAL	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD	1^st Putative Respondent
	DIRECTOR OF IMMIGRATION	2^nd Putative Respondent

________________________

Before: Hon Cheung JA, Kwan JA and Barma JA

Date of Written Submissions: 21 December 2018

Date of Judgment: 25 January 2019

________________________

J U D G M E N T

________________________

Hon Kwan JA (giving the judgment of the court):

1. This is the applicant’s application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 29 November 2018 dismissing his appeal against the refusal of leave to apply for judicial review concerning his non-refoulement claim.

2. By a Notice of Decision dated 17 October 2016, the Director of Immigration rejected the applicant’s claim.

3. The applicant appealed to the Torture Claims Appeal Board against the Director’s decision and his appeal was dismissed by the Board on 9 November 2017.

4. He filed a Form 86 on 14 November 2017 to seek leave to apply for judicial review in respect of the decisions of the Director and the Board. His application was refused by Deputy High Court Judge Bruno Chan on 29 June 2018.

5. The applicant filed a Notice of Appeal against the decision of the judge on 11 July 2018. The hearing of the appeal was vacated as he failed to lodge his skeleton argument by the time prescribed under the unless order made by the Registrar of Civil Appeals on 3 August 2018. This court dealt with the appeal on paper. We dismissed the appeal on 29 November 2018 as it has no merit and there is no prospect of success in the intended application for judicial review.

6. The applicant filed a Notice of Motion on 7 December 2018 for leave to appeal to the Court of Final Appeal and lodged his written submissions on 21 December 2018.

7. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 10 December 2018 that the Notice of Motion shall be determined on paper only without an oral hearing. This we proceed to do.

Grounds of the intended appeal

8. In the Notice of Motion, the applicant stated as follows:

“I would like to inform the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL [sic] information and my previous facts which were in favor while rejecting my claim. Actual life occur different situation then what is mentioned in COL information. The Officer and courts prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable”.

9. The applicant lodged two different sets of written submissions on 21 December 2018. In his 10‑page handwritten submissions, the applicant reiterated the basis of his fear and the threats he received previously. He submitted in his 5‑page typewritten submissions that the adjudicator acted in a procedurally unfair manner in dealing with his application without properly assessing his creditability.

Analysis

10. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal , from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

11. The grounds stated in the Notice of Motion are broad and vague and are without particulars. The written submissions only concern case‑specific matters, they do not involve any issue of great general or public importance. The applicant has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

12. In the exercise of our discretion, we dismiss the application for leave to appeal to the Court of Final Appeal.

(Peter Cheung)	(Susan Kwan)	(Aarif Barma)
Justice of Appeal	Justice of Appeal	Justice of Appeal

The applicant acting in person

CACV 308/2018

[2018] HKCA 891

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 308 OF 2018

(ON APPEAL FROM HCAL NO 888 OF 2017)

________________________

BETWEEN
	MALIWANAG NESTOR MARCIAL	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD	1^st Putative Respondent
	DIRECTOR OF IMMIGRATION	2^nd Putative Respondent

________________________

Before: Hon Cheung JA, Kwan JA and Barma JA

Date of Judgment: 29 November 2018

________________________

J U D G M E N T

________________________

Hon Kwan JA (giving the judgment of the court):

1. This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 29 June 2018[1] refusing him leave to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim.

2. The appeal was scheduled to be heard on 28 November 2018. Directions were given by the Registrar of Civil Appeals on 3 August 2018 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for his appeal and elect to have his appeal disposed of on paper. In such circumstances, the hearing date shall be vacated and the Court of Appeal shall proceed to consider the appeal on paper only without further notice.

3. A notice of hearing of the appeal dated 21 September 2018 was issued and sent to the applicant by post. In the notice, he was reminded that he should comply with the above directions of the Registrar of Civil Appeals.

4. The applicant failed to lodge skeleton argument not less than 28 days before the hearing of the appeal (i.e. on or before 31 October 2018). The court sent him a letter dated 7 November 2018 informing him that the hearing date of 28 November 2018 has been vacated and his appeal will be dealt with on paper.

Factual background

5. The applicant is a Philippines national. He last arrived in Hong Kong in 1999 with permission to work as a domestic helper. When his contract was prematurely terminated in 2001, he did not depart and instead overstayed until 4 October 2015 when he was arrested by the police for possessing another person’s identity card. After serving 12 months’ imprisonment, he was released to the Immigration Department for deportation. He raised a non-refoulement claim on 2 November 2015 on the basis that if he is to be returned to the Philippines, he would be harmed, or killed, by the New People’s Army (“NPA”) or by the Philippine military.

6. According to the applicant’s case, he was caught and subjected to torture and interrogation by members of the Philippine military for six months in 1989 to 1990. After that occasion, he was not harmed but he heard from continuing contacts in the NPA that he was still wanted by the organization and remained in their hit list.

The Director’s decision

7. By the Notice of Decision dated 17 October 2016, the Director rejected the applicant’s non-refoulement claim. The decision covered the torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. Due to the low intensity and low frequency of past ill treatment and the lack of objective evidence that the purported military people had a real intention to harm the applicant seriously or to kill him, the Director determined there is no reasonable likelihood that the risk of harm from the NPA and the purported military people is real and foreseeable[6], and the availability of state protection and internal relocation alternatives further lowers or negates the level of risk[7].

The Board’s decision

8. The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 29 June 2017. The Board found that the applicant provided vague answers in response to questioning, his evidence was incoherent and contradictory, andconcluded that he was not a witness of truth[8]. Importantly, the Board noted he spent more than twenty years living in Hong Kong without claiming protection to the United Nations High Commissioner for Refugees or the Hong Kong authorities and took the view that his behavior belies his claim to be a person who fled the Philippines in fear of his life[9]. The Board decided that the applicant failed to establish his claim and dismissed the appeal on 9 November 2017.

The intended judicial review

9. The applicant filed a Form 86 and an affidavit on 14 November 2017 to seek leave to apply for judicial review of the decisions of the Director and the Board. He did not provide any ground for his intended challenge in the Form 86 or his supporting affidavit.

The judge’s decision

10. At the oral hearing of his leave application before the judge, the applicant just claimed that the Director and the Board had focused on the wrong issue but he was unable to provide any further particulars or elaboration[10].

11. The judge was of the firm view that there cannot be any prospect of success in the applicant’s intended application for judicial review and the leave application was therefore refused[11].

12. The applicant filed a Notice of Appeal against the decision of the judge on 11 July 2018.

Ground of appeal

13. The applicant only stated in the Notice of Appeal that the judgment is unreasonable, without any providing any particulars.

14. As mentioned above, he failed to provide any grounds in both the Form 86 and his supporting affidavit, but only claimed at the hearing that the Director and the Board had focused on the wrong issue, without providing any further particulars or elaboration.

Analysis

15. In Re Moshsin Ali[2018] HKCA 549, the Court of Appeal held that the decision of the Director is not susceptible to judicial review once an appeal to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office is pursued by a non-refoulement claimant[12]. Since the applicant had already appealed to the Board against the Director’s decision, the court would focus on the decision of the Board in the intended judicial review.

16. 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 would be dismissed. It is not the role of this court 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 stringent time limit in Order 53 rule 4(1) of the Rules of the High Court. See Nupur Mst v Director of Immigration[2018] HKCA 524 at §14(6).

17. It has been repeatedly emphasised that 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. 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. See Nupur Mst v Director of Immigration at §14(1).

18. In this instance, the only ground of appeal as stated is that the judgment is unreasonable. This is lacking in particulars and the applicant failed to show there is any error of law or procedural unfairness or irrationality in the decision of the Board.

19. There is no merit in the appeal and no prospect of success in the intended application for judicial review. We therefore dismiss the appeal.

(Peter Cheung)	(Susan Kwan)	(Aarif Barma)
Justice of Appeal	Justice of Appeal	Justice of Appeal

The applicant acting in person

[1] CALL-1 Form, [2018] HKCFI 1431

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115

[3] This refers to the risk of violation of the right to life under article 2 of the Hong Kong Bill of Rights.

[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights.

[5] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[6] Notice of decision, §§12, 21, 23, 29 & 32

[7] Notice of Decision, §§17 to 18

[8] Decision, §§30 to 46

[9] Decision, §§47 to 48

[10] CALL-1 Form, §9

[11] CALL-1 Form, §§11-12

[12] §§31 to 45

MALIWANAG NESTOR MARCIAL v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

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