RE BINULOAN ELISSA RICOMES

CACV 80/2019

[2019] HKCA 1080

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 80 OF 2019

(ON APPEAL FROM HCAL NO. 882 OF 2017)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 4 June 2019 ([2019] HKCA 615), the Court of Appeal (Yeung Ag CJHC (as he then was) and Lisa Wong J) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 13 February 2019 in HCAL 882/2017 refusing to grant leave to her to apply for judicial review.

2.  By a notice of motion dated 13 June 2019, the applicant now seeks leave to appeal to the Court of Final Appeal.  

3.  In the notice of motion, the applicant made a complaint that “the result is not reasonable”.

4.  On 17 June 2019, the Registrar of Civil Appeals (“the Registrar”) directed that the applicant to lodge with the court her written submissions on or before 27 June 2019. 

5.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on paper only without an oral hearing.  As it is appropriate to do so, this application shall be determined on paper accordingly.

6.  The applicant lodged her written submissions on 25 June 2019.  In her written submissions, she reiterated that she would be in grave danger if refouled and advanced 4 grounds of appeal:

“1.  The judgment dismissed my appeal because the judge believed that I was here for work rather than to seek non-refoulement claim. However, I came to Hong Kong to work because I wanted to run away from my husband’s abuse as well. This has been made clear during my hearing in the TCAB.

2.  The TCAB, however, believes that this is a personal reason. As a matter of fact, this should not be counted as personal. This is a form of gender-based violence. I came for work to run away and that’s why I would rather stay in Hong Kong than going back. I don’t know about the USM system before. It was later then I realized there is a system like this that can protect me.

3.  Police in Philippines believes that domestic violence is a private issue and therefore they turn a blind eye on anything like this happened at home. Therefore, even if I go back, I won’t be protected.

4.  The TCAB fails to look into my case based on the Filipino context.  It ignores the problems that happens in Philippines and only selectively quoting sources that fits their purpose.”

7.  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.  This court has repeatedly stated that judicial review is not an avenue for revisiting the assessment of the Torture Claims Appeal Board (“the Board”) in the hope that the court may consider the matter afresh even in the absence of any legal error.  We also note that the applicant’s grounds of appeal against the Board were not raised nor canvassed at the lower court hearing and we would not entertain new arguments without leave and in any event, the grounds are without merit.  For the reason set out in [11] of our judgment, the applicant did not have reasonable arguable basis to challenge the Judge’s decision in rejecting her leave application.

8.  For the reasons that we gave in our judgment of 4 June 2019, we did not see any prospect of success in the applicant’s intended appeal against the Judge’s order.  None of the questions raised by the applicant in the notice of motion and her written submissions involved an arguable point or a question of great general or public importance.  We also do not see any basis for granting leave under the “otherwise” limb under section 22(1)(b).  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) are not met.

9.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss her notice of motion.

CACV 80/2019

[2019] HKCA 615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 80 OF 2019

(ON APPEAL FROM HCAL NO. 882 OF 2017)

_____________________

_____________________

___________________

J U D G M E N T

___________________

Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 13 February 2019, refusing to grant the applicant leave for judicial review.

Background

2.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 81.  We shall not repeat the same here.

3.  Briefly stated, the applicant is a national of Philippines. She came to Hong Kong on 9 September 2012 as a foreign domestic helper.  On 28 January 2013, her contract was prematurely terminated, but she did not depart and overstayed until her arrest by the police on 3 January 2014.  She was then referred to the Immigration Department for investigation and on 21 and 24 January 2014, she lodged a non-refoulement claim. Her claim was based on the fear that if she returned to the Philippines, she would be harmed or killed by her abusive husband and/or by money lender for failing to repay her loan. 

4.  By a Notice of Decision dated 29 May 2015, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 3 risk, torture risk, and persecution risk.  By a Further Notice of Decision dated 25 September 2017, the Director rejected the applicant’s claim on BOR 2 risk.

5.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) against the decisions of the Director.  After the hearing on 19 October 2016, the Board dismissed the appeal on 3 November 2017.   The Board took the view that the applicant came to Hong Kong for work rather than seeking non-refoulement protection and she was not a genuine asylum seeker.  The Board also concluded that the past ill-treatments by her husband and the money lender, if true, did not attain the level of minimum severity under any of the applicable grounds.  There was no evidence suggesting that the police or other government authorities in the Philippines would not provide assistance or protection to her, and that internal relocation alternatives were available to her anyway.   With the aforesaid reasons, the Board dismissed the applicant’s claims for non-refoulement protection under all applicable grounds.

6.  On 14 November 2017, the applicant filed her Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions, but she did not provide any grounds of seeking relief.  In her supporting affirmation filed on the same date, she merely exhibited copies of her non-refoulement claim form, the decisions of the Director and of the Board, her notice of appeal to the Board and the hearing bundle for her appeal before the Board without making any statements about those decisions against which she intended to challenge.

The Judge’s decision

7.  On 13 February 2019, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [14] – [17] for his refusal to grant leave:

“14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh[2018] HKCA 246; Re Daljit Singh[2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Re Litoun Mounsy[2018] HKCA 537.

15. In the present case the applicant did not even attempt to make any complaint or criticism of either decisions of the Director or the Board, and the fact that it has been established by both 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.

16. 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.

17.  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.”

The Appeal

8.  The applicant filed the Notice of Appeal on 19 February 2019 and she provided the following ground of appeal:

“I would like to reject and review the decision made by the court on my case. They disregard my dangerous situation.”

9.  Pursuant to the direction of Master Au Yeung dated 7 March 2019, the applicant filed her written submissions on 26 April 2019 in which she reiterated that she would be in grave danger if refouled and that the government could not assist or protect her.

10.  At the hearing of the appeal on 28 May 2019, the applicant did not make any further submission.

Discussion

11.  The applicant’s ground of appeal was general and failed to identify any error for this court to reverse the Judge’s decision. It is not a viable ground of appeal.  In any event, we are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny.  The Judge had rightly supported the Board’s finding that the applicant’s claim was a localized one and it would not be unreasonable or unsafe for her to relocate to other part of Philippines to avoid her abusive husband and the money lender and therefore, there was no justification to afford her non-refoulement protection in Hong Kong, see: [15] of CALL-1 Form.  We take the view that the Judge was plainly right in refusing her leave application.

12.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.