RE MORILLO ELEJA LOQUINARIO

CACV 257/2020

[2021] HKCA 398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 257 OF 2020

(ON APPEAL FROM HCAL NO 1773 OF 2018)

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J U D G M E N T

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Hon Toh J (giving the Judgment of the Court):

1.  By a judgment dated 29 December 2020[1], this Court (Yeung VP and Toh J) dismissed the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 7 July 2020 in HCAL 1773/2018 refusing to grant leave to her to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office (“the Board”) given on 15 August 2018 dismissing her petition/appeal from the decision of the Director of Immigration (“Director”) given on 15 March 2018 rejecting her non-refoulement claim.

2.  By a Notice of Motion dated 8 January 2021, the applicant now seeks leave to appeal to the Court of Final Appeal on the following grounds:

“1. In my Judgement, the Appellate Judges did not proper consider of my fear in my claim, the authority Torture Claims Appeal Board (the TCAB) and the Director failed to proper observation in to my claim, that I would face still risk upon refoulement to my country of origin.

2. Failure to consider the Country of origin conditions (COL) information that I would face genuine risk upon refoulement to my Country of origin.

3. Failure to consider my claim under BOR 3 risk.”

3.  In compliance with the directions made by the Registrar of Civil Appeals on 13 January 2021, the applicant lodged her written submissions on 20 January 2021.

4.  In the written submissions, she advanced the following:

(1)  The Board and the Director failed to make sufficient inquiries into the Country of origin information (“COI”) in respect of her case and adopted a passive approach in contravention of the high standard of fairness viz the discharging of the burden of proof as per Li CJ in Secretary for Security v Sakthevel Prabakar[2] and TK v. Michael C Jenkins and another[3].

(2)  The Board and the Director failed to take into account and /or give proper weight to relevant considerations and materials which they should have, and hence their decisions are illegal.  Specially, this Court has failed to give due regard to (a) the fact that the judge supported the Board’s decision which was improper as it did not follow the high standard of fairness in her claim; (b) the fact that her story is based on true story of her life, but the decision makers did not properly consider her fear; and (c) even though her risk is private and personal in nature, her life would still be at risk if refouled.

(3)  This Court’s judgment stated that her appeal has no merit and that she would not face real risk of harm if refouled, but her claim is not a private and personal matter which the decision maker did not consider it properly.

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

6.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, 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 Court of Final Appeal for decision.

7.  In our judgment, nothing set out in the Notice of Motion and the written submissions can be construed as valid ground of appeal to Court of Final Appeal. As explained at [12] to [16] of our judgment, the applicant’s claim was premised on domestic violence by her husband and by the fact that the applicant had separated from her husband since 1996, the Board had fully considered the applicant’s case and came to the right conclusion that she did not have any well-founded fear of being persecuted nor she would face any genuine and substantial risk of being subjected to torture if refouled.  We see no merit in intended appeal at all.

8.  For the reasons that we gave in our judgment of 29 December 2020, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the Notice of Motion and the written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is 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.

[1][2020] HKCA 1069

[2] (2004) 7 HKCFAR 187

[3] [2013] 1 HKC 526

CACV 257/2020

[2020] HKCA 1069

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 257 OF 2020

(ON APPEAL FROM HCAL NO 1773 OF 2018)

______________________________

______________________________

__________________

J U D G M E N T

__________________

Hon Toh J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of K.W. Lung (“the Judge”) on 7 July 2020 in HCAL 1773/2018 refusing leave to the applicant to apply for judicial review. By that decision, the Judge refused her application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 15 August 2018 in which the Board confirmed the decision of the Director of Immigration (“the Director”) dated 15 March 2018.

Background

2.  The applicant is a national of the Philippines.  She came to Hong Kong as a domestic helper since 1996. Her employment contract was terminated prematurely on 15 May 2009, but she did not depart and overstayed since 30 May 2009 Hong Kong. On 7 March 2015, she was arrested by police and was referred to the Immigration Department on 10 March 2015.  On 19 March 2015, she lodged a non-refoulement claim on the basis that if she were to return to the Philippines, she would be harmed or even killed by her husband because he suspected that the applicant had an external martial affair with another man.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1368. 

3.  By the Notice of Decision dated 15 March 2018, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

4.  The applicant appealed to the Torture Claims Appeal Board (“the Board”). After an oral hearing on 19 June 2018, the Board dismissed the appeal on 15 August 2018.  The applicant denied that she had an extra-marital boyfriend and was only made up by rumor-monger out of spite in or about 2003.  Further, the applicant was not in contact with her husband for a substantially long period of at least 22 years (since September 1996 after the applicant left Philippines for work) and if the husband was still serious about his relation with the applicant, he must have found ways to keep bothering the applicant and he had not done so.  Judging from the “peace” or “lack of actions” from the husband in the past 15 years, the Board found that the husband is unlikely to any abusive action against the applicant.  For the aforesaid reasons, the applicant had failed to substantiate that she qualified for non-refoulement protection on any of the applicable grounds.

The Judge’s decision

5.  On 29 August 2018, the applicant filed her Form 86 to apply for leave for judicial review in respect of the decision of the Board.  In her supporting affirmation, she set out the background of her case and advanced the following grounds for her intended challenge:

(1)  Procedural impropriety: failing to conduct sufficient inquiry into the relevant country of origin conditions.

(2)  Procedural impropriety / irrationality: failing to provide reasons for assessment of lack of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk.

(3)  Error / misdirection in law: failing to take into account the considerations of psychological strain for threats to her personally or threats to her kill her directly.

(4)  Insufficient basis to conclude that she would not be at risk of being subjected to torture and/or cruel, inhuman or degrading treatment or punishment (“CIDTP”).

6.  By the CALL-1 Form of 7 July 2020, the application was refused.  The Judge did not deal with the grounds of the applicant’s intended challenge.  He dismissed the applicant’s application after due consideration of the Board’s decision in which he found no errors of law or procedural unfairness or irrationality in the Board’s decision.  

The Appeal

7.  On 13 July 2020 , the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated ground of appeal is as follows:

(1)  failing to consider her claim under BOR3 risk that her life still in danger if refouled;

(2)  failing to conduct sufficient inquiry into the country of origin that she would face risk of harm upon refoulement; and

(3)  failing to consider her fear under all applicable grounds that her life is still at risk if refouled.

8.  In compliance with the direction given by Master Tsui on 9 October 2020, the applicant lodged her written submissions on 19 November 2020.  In her written submissions, she advanced the following:

(1)  The Board and the Director failed to comply with their duty to make sufficient inquiries into the Country of origin conditions of her claim and adopted a passive approach in contravention of the high standards of fairness as laid down in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and TKv Michael Jenkins & Anor [2013] 1 HKC 526.

(2)  The Board and the Director had failed to take into account and/or give proper weight to relevant considerations and materials which they should have, and hence the decisions were illegal.  Specially, the Board and the Director had failed to give due regard to:

(a)  the fact she would face real risk upon refoulement because of her fear of her enemies and that her life would be in danger; and

(b)  the fact that she had been placed in severe mental distress and that she would definitely face difficulty from her enemies upon refoulement.

(3)  Her claim is not personal or private in nature as she fled for her life from a group of murderers who will hunt her wherever she hides in the Philippines. There were no clear directions from the decisions why she would not be a subject of persecution upon refoulement. The Board and the Director failed to assess her fear to return to her country as her enemies are still looking for her. 

9.  We heard the appeal on 22 December 2020. 

General Principles

10.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]:

(1)  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 scrutinizing 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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). 

Discussion

11.  The fact that the Judge did not specifically address the grounds of challenges may not assist the applicant if there is no substance in these grounds.  We now deal with the grounds of challenge against the Board’s decision.

12.  The applicant’s first complaint that the Board had failed to conduct sufficient inquiry into the relevant Country of origin information (“COI”) is misconceived. Her case is premised on her alleged fear of domestic violence and abuse of her husband without any involvement of state factor and thus it was not necessary for the Board to refer to any COI in assessing her case.

13.  Regarding the second and fourth complaints that the Board failed to provide reasons or sufficient basis in rejecting her claim on BOR 3 risk and torture risk, we note that the Board had duly set out its assessment and findings on BOR 3 risk at [40] to [44] of its decision and at [49] to [54] on risk of torture and came to the right conclusion that the applicant did not have any well-founded fear of being persecuted nor she would face any genuine and substantial risk of being subjected to torture or CIDTP. 

14.  Similarly, the applicant’s third complaint that the Board failed to take into account her psychological strain of being harmed or even killed by her husband was unmeritorious.  The Board had rightly pointed out that the applicant had not seen her husband since she left the Philippines for work in September 1996 and the parties only had quarrels over the phone from mid-1997 to 2003 occasionally, her alleged fear did not attain the minimum level of severity for mental torture.

15.  To conclude, we take the view that the Board’s findings are detailed and well based without any errors of law or procedural unfairness or irregularities.  We see no basis for intervention.

16.  Turning to the grounds of appeal set out in the Notice of Appeal and the written submissions, we found that they are more or less a repetition of the grounds stated in her supporting affirmation of Form 86 and they are mere assertions of the applicant without substance and basis. With our findings in [15] of this judgment, none of the grounds can stand.

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

[1] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[4] This refers to the 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.