RE LOBATON MINDALIN DE ORO

CACV 273/2019

[2019] HKCA 1261

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 273 OF 2019

(ON APPEAL FROM HCAL 2958/2018)

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____________________

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.  Before the court is a notice of motion filed on 2 October 2019 by the abovenamed applicant, applying for leave to appeal to the Court of Final Appeal (“CFA”) against this court’s judgment dated 30 September 2019 ([2019] HKCA 1087) (“Judgment”), dismissing the applicant’s appeal from a decision dated 13 June 2019 ([2019] HKCFI 1535) by Deputy High Court Judge K W Lung, refusing her leave to apply for judicial review of the decision dated 7 December 2018 of the Torture Claims Appeal Board (“Board”) concerning her non-refoulement claim.

Paper disposal appropriate

2.  Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing. We agree with the Registrar that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.  Under s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA, from any judgment of the CA in any civil cause or matter, whether final or interlocutory, if, in the opinion of the CA or the CFA, 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 CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

4.  First, in seeking leave to appeal to the CFA, the applicant asserted in the notice of motion as follows (sic):

“I would like to infomr the Honourable Court that there is some error of law in my decision. Decision maker just relied COL 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 cours prefers to ignore 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.”

5.  Second, by the written submission lodged on 15 October 2019, the applicant referred to ST v Director of Immigration (sic)[1] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531, R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514, Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the well known propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim; and (4) that the court may intervene with the exercise of an administrative discretion where it is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker.

6.  However, the only attempted elaboration by the applicant as to whether and, if so, how the high standards of fairness have not been met in the processing of her claim was a one sentence assertion in paragraph (5) that the Board had acted in a procedurally unfair manner by not properly assessing her credibility.

7.  Towards the end of her written submission, in paragraph (8), the applicant also made a reference to s 37ZT of the Immigration Ordinance (Cap 115). This section clearly has no relevance to the applicant’s case as her appeal to the Board against the Director of Immigration’s rejection of her non-refoulement claim had not been out of time at all.

Discussion

8.  The applicant has plainly not raised any issue for determination by the CFA, whether of great, general or public importance or otherwise.

9.  Nor do we see any scope to grant leave under the “or otherwise” limb.

10.  Insofar as the applicant is suggesting in her notice of motion that the Department of Immigration officer and the Board adjudicator involved in the screening of her non-refoulement claim and the judges involved in determining the judicial proceedings arising therefrom have approached their tasks with a pre-disposition for dismissal with reference only to generic country of origin information (“COI”) without regard to the particular facts and evidence of the cases before them, the applicant has not advanced any or any proper basis for so suggesting. 

11.  Further, in the applicant’s case, as noted in [9] of the Judgment, the Board disbelieved that the applicant has any outstanding debts or that there is any real risk of her facing any harm from the claimed or other creditors when she returns to the Philippines. This is a finding of fact well within the province of the Board. The Board arrived at such finding after hearing the applicant and testing her evidence. The Board did not in fact refer to or rely on any COI in assessing the applicant’s credibility. As stated in [6] above, the applicant has, for the purpose of seeking leave to appeal to the CFA, made a bare assertion in her written submission that the Board had failed to properly assess her credibility. However, she has not given any particulars as to how the Board had allegedly so failed. The Board dealt with the applicant’s appeal in detail in a 16-page decision. In particular, in [19] to [66], the Board analysed the applicant’s testimony given, not just before it, but at different stages of the screening process, and provided detailed reasons to explain why it did not accept the applicant’s claim. We can discern no ground to question the Board’s analysis.

12.  As for the courts’ role, we have already explained in [17] and [18] of the Judgment that a judicial review is not a channel for a reconsideration of facts. The Court of First Instance (“CFI”) will scrutinise the Board’s decision for any errors of law, procedural unfairness or irrationality while the CA will examine the CFI judge’s decision in light of the ground of appeal advanced by the applicant, which should be premised upon the CFI judge having erred in law, omitted to consider a relevant matter or been otherwise plainly wrong.

13.  Neither the notice of motion nor the applicant’s written submission has really engaged the reasons given in the Judgment.

14.  As neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met, we dismiss the notice of motion.

[1] The correct citation should be ST v Betty Kwan.

CACV273/2019

[2019] HKCA 1087

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 273 OF 2019

(ON APPEAL FROM HCAL 2958 OF 2018)

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J U D G M E N T

___________________

Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Ms LOBATON Mindalin De Oro, against the order made by Deputy High Court Judge K W Lung (“Judge”) on 13 June 2019 refusing her leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“Board”) given on 7 December 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”) by a notice of decision dated 29 January 2018 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of the Philippines now aged about 46, is a fear of being harmed or even killed by her creditors, Joemar Nellama and Arlene Hallea (“Moneylenders”) whom the applicant describes as loan sharks, if she should return to the Philippines. Such alleged fear is said to arise out of the following circumstances:

(1)  In around April 2015, the applicant borrowed 800,000 pesos (“Loan”) from the Moneylenders to pay medical expenses for her mother who had heart disease.

(2)  She was initially able to keep up with the repayment of interest, which accrued at a monthly rate of 10% with the help of her siblings and relatives.

(3)  Her mother passed away on 6 July 2015. Thereafter, the applicant could not afford to repay either the principal or interest of the Loan.

(4)  In September 2015, the Moneylenders came to the applicant’s house to demand for repayment. The applicant pleaded for more time, whereupon the Moneylenders said they would come again for the entire Loan and left.

(5)  In October 2015, the Moneylenders returned to the applicant’s house with 5 bodyguards. Upon being told by the applicant that she had no money to repay the Loan, they assaulted the applicant who sustained a broken nose, bruises and swelling (which took her about a week to recover). They also ransacked her home, damaging her furniture and taking away all valuable items.  They further threatened to kill the applicant if she failed to repay the Loan when they came again.

(6)  The applicant reported the incident to the police station of Sagay City (where the applicant was living) but they only told her to be careful.

(7)  To avoid the Moneylenders, the applicant went to Manila on 8 November 2015 with a view to making arrangements to come to Hong Kong in early 2016. She stayed at a training centre in Manila for 2 months during which she did not encounter the Moneylenders.

(8)  The applicant has maintained contact with her family after she left the Philippines and has been informed that the Moneylenders have kept going to her house to find her and have asked her neighbours in which country she is working. 

Entry into Hong Kong and lodgment of NRF Claim

3.  The applicant arrived in Hong Kong on 17 January 2016 with permission to work as a domestic helper until 17 January 2018 or 2 weeks after termination of her contract, whichever was the earlier. Her employment contract was prematurely terminated on 7 April 2016. She could lawfully stay in Hong Kong until 21 April 2016. She did not leave and has overstayed since 22 April 2016. On 29 June 2016, she surrendered to the Immigration Department.

4.  The applicant lodged the NRF Claim by way of written representation on 26 September 2016 and submitted her Non-refoulement Claim Form on 20 December 2017. 

Director’s Decision

5.  In processing the NRF Claim, the Director’s representative(s) conducted a screening interview on 10 January 2018 with the applicant who then had legal assistance and representation from the Duty Lawyer Service.

6.  The Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection, i.e. torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

(1)  The applicant had not sustained any real physical injury at the hands of the Moneylenders. The low intensity and frequency of the past ill-treatment indicates a low future risk of harm upon the applicant’s return to the Philippines.

(2)  The applicant’s behaviour, being her failure to seek non-refoulement protection immediately upon her arrival in Hong Kong, is inconsistent with that of a person genuinely in fear for her own safety.

(3)  There is objective country of origin information (COI) showing that the Philippine government has taken practical steps to improve the effectiveness of the Philippine police force, which could provide protection to its citizens. The inaction of the Sagay police station appeared to be an isolated incident of misconduct. The availability of state protection would further lower or even negate the level of risk (if any).

(4)  Internal relocation alternatives (e.g. to Quezon City), which would further reduce any risk of harm, are available in a geographically large and populous country like the Philippines.  And it is not unduly harsh or unreasonable for the applicant, an abled-bodied adult of prime age and with 13 years of working experience to relocate. The applicant’s assertions that the Moneylenders would and could find her all over the Philippines is speculative. In fact, she spent 2 months in Manila without once encountering the Moneylenders.

Appeal to Board and Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Board on 9 February 2018.

8.  After a rehearing on 7 November 2018, at which the applicant testified and answered questions by the Board through a Tagalog interpreter, the Board dismissed the applicant’s appeal on all applicable grounds for non-refoulement protection on 7 December 2018.

9.  In short, the Board disbelieved the applicant that she has any outstanding debts or that there is any real risk of her facing any harm from the claimed or other creditors when she returns to the Philippines. 

10.  In light of the rejection of the applicant’s factual case, it was unnecessary for the Board to consider the issue of internal relocation alternatives. Nevertheless, given that the risk of harm (if any) posed by the Moneylenders would be localised, the Board agreed with the Director that, if necessary, it would not be unduly harsh or unreasonable for the applicant to relocate within the Philippines to be free of such alleged harm.

Application for leave for judicial review and Judge’s Decision

11.  By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 2958/2018 on 24 December 2018 (“Form 86”), the applicant sought leave to apply for judicial review of the Board’s Decision. By the Form 86 and the supporting affirmation filed on the same date, the applicant sought leave for judicial review on the general grounds that the Board had:

(1)   unlawfully fettered its discretion by refusing the applicant’s appeal;

(2)   acted in a procedurally unfair manner in dealing such appeal and

(3)   been unreasonable or irrational in the public law sense or committed procedural errors or unfairness and relied upon the COI which were outdated and not officially recognized or simply hearsay; and

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

12.  The applicant also more specifically complained that:

(1)  The hearing bundle was provided to her just about 6 days before the hearing with 2 of those days falling on the weekend. Such bundle was further in English without translation which she had no means of procuring herself.  Due to her lack of understanding of what would happen at the hearing, she was confused.

(2)  The Board significantly relied upon unofficial or hearsay sources of news and outdated cases, which resulted in the groundless speculation that the applicant could safely return to her home country.

13.  After hearing the application for leave for judicial review in open court at which the applicant was present and was assisted by a Tagalog interpreter, the Judge refused leave. His reasons can be found in the duplicate [1]-[6] under the heading “DISCUSSION” of the Form CALL-1 dated 13 June 2019, [2019] HKCFI 1535, 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 said that she could understand the Board’s decision as she could read English herself.

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.  It is quite obvious that, apart from some fundamental facts such as her nationality, the Board did not accept the facts as stated by the applicant in support of her claim. Therefore, the applicant had no factual basis for her claim. Those grounds above are quite irrelevant.

4.  The Court of Appeal in Re: Moshsin Ali[2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42].

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

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

Appeal to Court of Appeal andgrounds of appeal

14.  By a notice of appeal filed herein on 24 June 2019, the applicant appealed against the refusal of leave for judicial review on 2 grounds:

(1)  that she “will face hardship if he (sic) is to return back to his (sic) home country” (“Ground 1”); and

(2)  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.” (“Ground 2”)

15.  In her skeleton submission dated 13 August 2019, the applicant referred to ST v Director of Immigration (sic)[5] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the well known propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim. However, the applicant did not suggest whether and, if so, how the high standards of fairness have not been met in the processing of her claim.

16.  The applicant appeared in person at the hearing of the appeal on 17 September 2019. She had nothing to add to the notice of appeal or the skeleton submission.

Court of First Instance’s role in judicial review in non-refoulement claim

17.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration[2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

18.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[6]are met.  Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below. In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

19.  Applying these principles, first, as summarised in [6] and [9] above, the NRF Claim failed on the facts and evidence at both tiers of the Unified Screening Mechanism. In particular, the applicant has been found by the Board as owing no debt and as facing no risk of harm from any creditor upon her return to the Philippines. The applicant’s bare assertion under Ground 1 that she will face hardship if she is to return back to the Philippines goes against such findings by the Board. The question whether the applicant would be at risk if refouled is a question of fact within the province of the Board (after the Director): see [17] above. The Board heard the applicant. It provided detailed reasons in [19]-[66] of its decision, explaining why it did not accept the applicant’s testimony of the circumstances giving rise to a risk of harm to her at the hands of the Moneylenders. It can be seen from [11] to [12] above that the applicant has not, by the proposed grounds for judicial review raised before the Judge, articulated any errors of law, procedural unfairness or irrationality on the part of the Board in coming to such adverse findings against her. Nor has she done so before this court. Ground 1 is devoid of merit.

20.  Ground 2 targets the Board. As explained in [18] above, in hearing an appeal against a refusal of leave for judicial review of the Board’s decision, what the Court of Appeal examines is the judge’s denial of leave for judicial review, and not the Board’s dismissal of the appeal against the Director’s rejection of the non-refoulement claim. The applicant has not, in the notice of appeal or written submissions before us, stated in any meaningful way how the Judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong in not granting leave for judicial review of the Board’s Decision. Nor can we discern any.

21.  Even insofar as the Board’s Decision is concerned, Ground 2 has not particularised the alleged unrecognised or hearsay source of news, outdated cases or incredible source of information that the Board is said to have referred to or relied on. Nor has she alluded to any particular part of the Board’s Decision that is allegedly speculative or groundless as a result of the Board having acted on such news, cases or information. Ground 2 is likewise unmeritorious.

Disposition

22.  For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.   

[1] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) (“Ordinance”) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.

[2] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

[3] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.

[5] The correct citation should be ST v Betty Kwan.

[6] [1954] 1 WLR 1489.