RE SALVA MARITES CORDERO

CACV 456/2018

[2019] HKCA 717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 456 OF 2018

(ON APPEAL FROM HCAL 22 OF 2018)

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_______________

____________________

J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  By a judgment dated 28 January 2019 ([2019] HKCA 123) (“the Judgment”), this court (Hon Chu, Au JJA and Andrew Chan J) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 7 September 2018 refusing her leave to apply for judicial review (“the Deputy Judge’s Decision”).  The intended judicial review was against the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 29 December 2017 dismissing the applicant’s appeal against decisions of the Director of Immigration (“the Director”) dated 10 June 2015 and 6 June 2017 rejecting her non-refoulement claim.  The applicant now seeks leave to appeal to the Court of Final Appeal.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.

3.  By a Notice of Motion dated 4 February 2019, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

4.  In the Notice of Motion, the applicant set out the following grounds:

“I would like to infomr [sic] the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in the COL Information. The Officer and cours [sic] 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.”

5.  In compliance with the direction given by Master Au-Yeung on 8 February 2019, the applicant lodged her written submission on 18 February 2019.  In her written submission, the applicant quoted some passages from ST v Director of Immigration [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 Adjudicator (ie, the Board) acted in a procedural unfair manner and failed to access her credibility properly.  She also complained the Wednesbury unreasonableness of the decision-makers and cited Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence exp Smith [1996] QB 517 in support.

6.  We have duly considered the applicant’s Notice of Motion and her written submission.  Pursuant to paragraph 3 of Practice Direction 2.1, we proceeded to consider this application on papers without any oral hearing.

7.  First of all, the applicant’s written submission on the issue of “high standards of fairness” was essentially the same as the one she submitted before this Court on 5 December 2018 when she applied leave to appeal against the Deputy Judge’s Decision.  We have dealt with them at [10] and [11] of the Judgment.

8.  Secondly, the rest of the grounds in relation to Wednesbury unreasonableness were against the decision makers (ie, the Director and the Board).  The Deputy Judge had found that there was no error in law or procedure in the decision making process: see [14] of the Deputy Judge’s Decision.  We do not find any legal error in his decision: see [13] of the Judgment.

9.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, leave to appeal to the Court of Final Appeal may be granted if 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.  For the reasons that we gave in the Judgment, we did not see any prospect of success in the applicant’s intended appeal against the Deputy Judge’s Decision.  None of the questions raised by the applicant in the notice of motion or in her written submission involve any question of great general or public importance such that it ought to be submitted to the Court of Final Appeal for decision.  Nor do we find any basis to grant leave on the “otherwise” limb.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484) are not met.

10.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss her Notice of Motion.

CACV 456/2018

[2019] HKCA 123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 456 OF 2018

(ON APPEAL FROM HCAL 22/2018)

_______________

_______________

____________________

J U D G M E N T

____________________

Hon Au JA (giving the Judgment of the Court):

The appeal

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 7 September 2018 refusing her leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 29 December 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 10 June 2015 and 6 June 2017 rejecting her non-refoulement claim.

The applicant

2.  The applicant is a Filipino national.  She last entered Hong Kong on 9 April 2012 with permission to work as a domestic helper until 10 May 2013 or within two weeks after termination of employment, whichever was earlier.  Her employment ended on 10 May 2013 but she did not depart and overstayed until 15 July 2013, when she was arrested by the police for theft for which she was later convicted and sentenced to 12 months’ imprisonment.  Upon discharge from prison, she lodged a non-refoulement claim with the Immigration Department on 15 March 2014.  The basis of her claim is that if she were to return to the Philippines, she would be harmed or killed by her abusive husband.

The claim

3.  The applicant’s background and the details of her claim were set out in paragraphs 5 ‑ 8 of the Director’s Notice of Decision dated 10 June 2015 and paragraphs 7 ‑ 22 of the Board’s decision dated 29 December 2017.  Briefly stated, one night in 2008, two men came to the applicant’s house to look for her husband who was not at home at the time.  The men indicated to her that her husband was a member of the New People’s Army (“NPA”), the armed wing of the Communist Party of the Philippines banned by the government as a terrorist organization.  She had asked her husband to quit the NPA but he refused and assaulted her.  She then left home with their children to live in a cousin’s place.  Her husband threatened to kill her because he was angry about her leaving home with their children.  She therefore decided to come to Hong Kong to work as a domestic helper.

The decisions of the Director / the Board

4.  By a Notice of Decision dated 10 June 2015, the Director rejected the applicant’s claim having regard to the torture risk[1], the BOR 3 risk[2] and the persecution risk[3] grounds.  By a Notice of Further Decision dated 6 June 2017, the Director also rejected the applicant’s claim with regard to the BOR 2 risk ground.[4]  The applicant appealed to the Board.  A hearing was held on 21 September 2016 and on 24 July 2017.  By its decision dated 29 December 2017, the Board dismissed the appeal and affirmed the Director’s decisions.

The Judge’s decision

5.  The applicant filed a Form 86 on 4 January 2018 seeking leave to apply for judicial review of the Board’s decision.  She set out her grounds for judicial review in the supporting affirmation filed on the same day.  As summarized by the Judge, they are:

(1)   error/misdirection in law for rejecting her claim and dismissing her appeal and for failing to properly consider her claim and to make proper assessment and inquiry into the situations in the Philippines;

(2)   procedural impropriety for failing to assess her fear arising from her claim under all the applicable grounds;

(3)   procedural impropriety for failing to make proper observation of her fear of harm not only from her husband but also from NPA whose terrorist acts in the Philippines frequently causing deaths and injuries to the police and its citizens in various parts of the country; and

(4)   error/misdirection in law for failing to take into account and consideration of the psychological strain and threats to the applicant and other members of her family.

6.  At the applicant’s request, the Judge held an oral hearing on 1 June 2018 to hear the leave application.  Having considered the applicant’s proposed grounds for judicial review, the Judge concluded that they were unarguable and had no prospect of success, and refused to grant her leave to apply for judicial review.  He set out his reasons in paragraphs 12 ‑ 15 of the Form Call‑1 dated 7 September 2018, [2018] HKCFI 1967:

“12. These are all very broad and vague assertions of the applicant without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the Board had erred in their decisions, or in what way did they fail to take into account of the situations in the Philippines when it was clearly a domestic dispute between her and her husband. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13. Furthermore, as it has been established by both the Director and the Board that the risk of harm form the applicant’s husband is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to another part of the Philippines, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

14. In the premises and having proceeded to consider 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.

15. 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 his (sic) leave application.”

Grounds of appeal

7.  The applicant filed a Notice of Appeal dated 17 September 2018 to appeal the Judge’s decision.  She stated the grounds of appeal as follows:

(1)   She would face hardship if she were to return to her home country.

(2)   The Board had significantly relied on the source of news which was not officially recognized, or it was simply hearsay.

(3)   The Board had relied on some cases that were out‑of‑date and had failed to consider the dramatic changes.  The lack of credible source of information had resulted in the adjudicator making groundless speculations.

Discussion

8.  At the hearing, the applicant confirmed that, in support of this appeal, she had nothing to add to the matters and submissions stated in the Notice of Appeal and her written submission dated 5 December 2018.

9.  The present appeal is against the decision of the Judge refusing leave to apply for judicial review.  The grounds of appeal as stated in the Notice of Appeal do not point to or identify any errors said to have been committed by the Judge in his decision and reasons for it.  The grounds of appeal are merely repetitions of her claim and vague assertions that the Board had not properly assessed her claim.

10.  In her written submission dated 5 December 2018, the applicant quoted passages from ST v Director of Immigration [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 and submitted that the court should “grant an order that the leave be granted”.

11.  This complaint is directed at the Director and the Board, which had been properly addressed by the Judge in his reasons at paragraphs 12 ‑ 14 of the Form Call‑1.  As mentioned above, the applicant has not identified anything in this appeal to demonstrate why the Judge was wrong in his reasons.

12.  These are not valid grounds of appeal which can show that the Judge was wrong in any respect in his reasons for refusing the applicant’s application for leave to apply for judicial review.

13.  In any event, we have reviewed the decisions of the Board and of the Judge and the reasons they gave for their decisions.  We see no error of law, or mistake of fact, or procedural impropriety in reaching those decisions. There is no basis to disturb the Judge’s decision.

Disposition

14.  For the reasons given above, we conclude that there are no merits in the appeal.  Accordingly, we dismiss the appeal.