RE PORTILLO JUANITO GARCES

CACV 2/2019

[2019] HKCA 781

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 2 OF 2019

(ON APPEAL FROM HCAL 343/2018)

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J U D G M E N T

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

1.  On 2 May 2019, this court (Barma JA and G Lam J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the judge”) on 24 December 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 16 May 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1. Failure to consider the psychological harm when befell on me, as a result of the facts stipulated in my claim, the judges decision was arrived to support of the TCAB and the Director’s decision, which doesn’t reflect my fear properly.

2. Failure to consider my fear, that my enemies still continue looking for me, they want to revenge against me, my life would be at risk, failure to consider my claim under BOR 2 and BOR 3 risk.

3. Failure to consider my claim in a holistic manner.

4. Failure to consider the concept of extended state acquiescence per para: 18 General Comment No. 2 of the United Nations Committee Against Torture”

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of the application on 29 May 2019.  In the written submission, the applicant reiterated the matters raised in the Notice of Motion.  He submitted that the court failed to take into account certain relevant consideration and took into account certain irrelevant consideration.

5.  Having considered the applicant’s Notice of Motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the Notice of Motion and written submission.

6.  The matters stated by the applicant in the Notice of Motion and written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised in the Notice of Motion and written submission.  

7.  The applicant did not rely on the allegation that his enemies were still looking for him on appeal.  It is not open to the applicant to rely on this ground in this application without good reasons.  We have already addressed the other matters at [13] – [15] of our judgment.  Having considered the Notice of Motion and the written submission, we are of the view that these matters are not reasonably arguable before the Court of Final Appeal.

8.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

9.  For these reasons, the Notice of Motion dated 16 May 2019 is dismissed.

CACV 2/2019

[2019] HKCA 470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 2 OF 2019

(ON APPEAL FROM HCAL 343/2018)

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___________________

J U D G M E N T

___________________

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

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam given on 24 December 2018 refusing the applicant leave 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 dated 27 February 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 12 November 2014 and 14 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Philippines.  He entered Hong Kong on 18 February 2009 and was permitted to remain in Hong Kong for 1 day.  He overstayed and surrendered to the Immigration Department on 23 June 2009.  He lodged a non-refoulement claim on 2 July 2009. 

3.  The applicant’s claim was based on threats from a group of men in his home village. The applicant claimed to have witnessed the attempted rape and murder of a girl by those men in about 2006.  He claimed that he was at risk of being killed by the perpetrators to prevent him from giving evidence as to the incident.  The details of the applicant’s claim have been summarised by the judge at [3] to [10] of the CALL-1 Form.

4.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 14 June 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 27 October 2015 and 14 November 2017, the Board dismissed the appeal on 27 February 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.  At [28] of the Board’s Decision, the Board found that the applicant’s case was not credible. 

The deputy judge’s decision

7.  The applicant filed a Form 86 on 5 March 2018 which contained no ground for seeking relief.

8.  In the affirmation in support of the leave application dated 5 March 2018, the applicant advanced the following grounds for judicial review which are summarised below:

(1)   the Board and the Director failed to properly consider General Comment No. 2 of the UN Committee Against Torture;

(2)   the Board and the Director failed to consider the issue of state acquiescence;

(3)   the Board and the Director failed to consider and critically analyse the Country of Origin Information (COI).  They also failed to explain why it preferred some of the COI over the other COI.  The Director cherry-picked COI;

(4)   the Board and the Director were wrong in concluding that he did not suffer from any pain or suffering in the past; and

(5)   the Board and the Director only focused on physical torture but failed to consider if there was mental torture in his claim.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [27] to [33] of the CALL-1 Form:

“27. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

28. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

‘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 scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.’

29. The Applicant accused the Adjudicator cherry-picked information. There were no specifics. I find no evidence that the Adjudicator cherry-picked information.

30. The Applicant complained the Adjudicator failed to properly consider COI and the issues of state protection plus extended state acquiescence. He also complained the Adjudicator failed to take into account his mental stress due to threats from the enemies.

31. The Adjudicator actually found the Applicant incredible. She did not believe the Applicant's claim and thus found him failed to prove any risk that warranted non-refoulement protection. The Adjudicator stated her reasons clearly. She had proper basis for her finding. In light of her finding, the Applicant's alleged fear and suffering (mental or physical) were no real issues. The Adjudicator also need not go on to consider state acquiescence or any COI for the consideration of state protection or internal relocation.

32. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts of the case. She considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.

Conclusion

33. The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.”

Grounds for appeal

10.  In the Notice of Appeal dated 3 January 2019 the applicant advanced the following grounds of appeal:

(1)   failure to consider psychological strain and threats to the applicant;

(2)   failure to consider the concept of extended state acquiescence;

(3)   failure to give reasons for assessment of lack of BOR 3 risk and/or insufficient basis to support the conclusion of the lack of BOR 3 risk; and

(4)   failure to consider General Comment No. 2 of the UN Committee Against Torture and to assess the effectiveness of the steps taken by the authorities against the violence inflicted by loan sharks.

11.  In his skeleton submissions dated 20 March 2019, the applicant repeated his version of the events giving rise to his claim.  He also submitted that the Board and the Director made a number of errors in evaluating his claim by failing to inquire into country of origin conditions, and failing to take account of the facts that he was placed in danger, that the murderers would hunt him down to destroy evidence of their crime, and that he was placed in severe mental distress as a result.

12.  The applicant agreed by a letter of 3 January 2019 that the appeal could be heard by two judges.  We heard the appeal on 17 April 2019.  At the hearing, the applicant indicated that he had nothing to add to the materials already before the court.

Discussion

13.  The grounds of appeal set out in the Notice of Appeal and the skeleton submission complain of errors on the part of the Director and the Board, but do not identify any error on the part of the judge.  The only ground in which mention is made of the judge is ground 4 in the Notice of Appeal.  However, it is apparent from that ground that it is directed at an alleged error by the Board, and not the judge.  They are therefore not viable grounds of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.

14.  Further, and in any event, having regard to the fact that the Board dismissed the applicant’s appeal to it on the basis of his lack of credibility, and its rejection of the factual basis of his claim, it was not necessary for the Board to consider the questions of state protection or state acquiescence, and it did not in fact base its Decision on these factors.

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