RE FULGENCIO MILAGROS S.

CACV 248/2019

[2021] HKCA 323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 248 OF 2019

(ON APPEAL FROM HCAL 406/2018)

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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 16 April 2020, this court (Chu JA, Barma JA and Au JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 31 May 2019 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 her appeal from the decision of the Director of Immigration rejecting her 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 12 May 2020, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“I would like to inform the [court] that there is some error in law in my decision. Decision maker just relied on COI information and my previous facts which were in favor while rejecting my claim. Actual life occur different situation then what is mentioned in COI 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 betray a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

4.  The applicant lodged a written submission in support of the application on 27 May 2020.  In the written submission, the applicant submitted that:

(1)  the Board failed to meet the high standard of fairness;

(2)  the Board failed to properly assess her credibility; and

(3)  the Board’s decision was Wednesbury unreasonable.

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 documents filed.

6.  The matters stated by the applicant 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 she has raised.  

7.  The grounds relied on by the applicant are very broad and lack particulars.  They do not identify any error in our judgment, complaining only in respect of the decision of the Board.  In our view, these grounds 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 12 May 2020 is dismissed.

The applicant acting in person

CACV 248/2019

[2020] HKCA 199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 248 OF 2019

(ON APPEAL FROM HCAL 406/2018)

____________________

____________________

___________________

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 Bruno Chan given on 31 May 2019 refusing leave to the applicant 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 decision of the Director of Immigration dated 23 May 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Philippines.  She entered Hong Kong in 1994 to work as a foreign domestic helper.  She surrendered to the authorities on 15 February 2016.  She lodged a non-refoulement claim on 17 June 2016.

3.  The applicant’s claim was based on threats from her husband.  The details of the applicant’s claim have been summarised by the judge at [2] to [4] of the CALL-1 form.

4.  By a Notice of Decision dated 23 May 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 8 January 2018, the Board dismissed the appeal on 27 February 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [36] of the Board’s Decision, the Board found that the applicant is unlikely to be subject to any of the proscribed harms upon her return.  The Board was also satisfied at [52] that there is nothing to suggest that state protection will not be available for the applicant and at [62] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a Form 86 on 13 March 2018 which contained the following grounds for judicial review:

(1)  the Board unlawfully fettered his discretion by refusing the appeal on the ground that they did not satisfy the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with the appeal;

(3)  the Board’s Decision was unreasonable or irrational in the public law sense, or was the result of procedural errors or unfairness; and

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant.

8.  In her affirmation in support of the leave application dated 13 March 2018, the applicant advanced the following grounds for judicial review:

(1)  the hearing bundle for the hearing before the Board was not provided earlier or with interpretation, she was confused as to what was happening;

(2)  the late provision of hearing bundle and the lack of interpretation led the Board to question the applicant’s credibility; and

(3)  the Board had significantly relied on sources of news which were not officially recognized or simply hearsay, causing the Board to speculate that it was safe for her to return.

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 [10] to [15] of the CALL-1 form:

“10. These are however all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator act in a procedurally unfair manner in dealing with her appeal, or how was his decision unfair or unreasonable in the public law sense, or in what way were the COI relied on by the Board outdated or not officially recognized. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and in the absence of any error in the decision being clearly and properly identified by the applicant, I do not see any basis or merits in any of her complaints or that any of them are reasonably arguable in her intended challenge.

11. The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal.

12. Even if it is true that the hearing bundle indeed came to her late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interviews and the Director’s decisions should be well familiar to the applicant as they had earlier all been already made available to her when she still had legal representation, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing she never raised any issue or requested the adjudicator for further time to enable her to better prepare for her appeal. As such I do not find anything amiss arising from the hearing bundle for the applicant in her appeal before the Board.

13. 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.

14. 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.

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 her leave application.”

Grounds for appeal

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

“The Plaintiff will face hardship if he is to return back to his 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.”

11.  The applicant failed to comply with the direction made by this court on 2 July 2019 requiring her to lodge skeleton submissions by 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

12.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  The non-compliance with such requirement 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 an oral 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 with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

13.  The hearing date on 17 September 2019 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on paper on the basis of the materials already filed with the court.

Discussion

14.  The only ground of appeal set out in the Notice of Appeal complains of errors on the part of the Board, but does not identify any error on the part of the judge.  It is therefore not a viable ground 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.  In any event, having examined the judge’s decision, we can see no error in it.

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