RE LAGUISAN CATALINA BUNHIYAN

CACV 341/2020

[2021] HKCA 1059

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 341 OF 2020

(ON APPEAL FROM HCAL NO 438 of 2018)

__________________________

__________________________

________________

JUDGMENT

________________

Hon Chu JA giving the Judgment of the Court:

1.  On 13 May 2021, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 27 July 2020 which refused to give her leave to apply for judicial review.     

2.  On 25 May 2021, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  She has also put in a written submission to support her application.

3.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  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.

6.  The notice of motion did not set out any ground in support of the application.  It merely stated that the applicant disagreed with the authorities’ decisions and that as her life is still in danger in her home country, she asked to be allowed to stay in Hong Kong.

7.  The written submission set out the background of the applicant’s claim, her appeal to the Board and her application for leave to bring judicial review.  It was followed by criticisms of the Board’s decision which included mis-application and selective use of country of origin information, and failure to adhere to a high standard of fairness and the requirements of procedural fairness.  It also cited the UK Supreme Court decision of Osborn v The Parole Board [2013] UKSC 61 and argued that the case as well as the principle discussed in it, namely, whether procedural fairness requires an oral hearing, had not been cited in the application before the Judge.  It was said that the Judge had failed to make sufficient enquiry before deciding on the applicant’s application.     

8.  For the reasons below, we are of the view that what have been put forward in the notice of motion and the written submission do not provide viable grounds for granting leave to appeal to the Court of Final Appeal:

(1)  The matters raised in the notice of motion and written submission all relate to the applicant’s claim.  No question of great general or public importance has been identified, as required by section 22(1)(b). 

(2)  The arguments now raised in the written submission were not raised in the Form 86 or argued in the appeal to this Court.  It is established law that it is not permissible to raise new arguments or issues at the stage of applying for leave to appeal to the Court of Final Appeal. 

(3)  The case of Osborn v The Parole Board has no relevance.  The applicant’s appeal to the Board was heard at an oral hearing. As to the applicant’s application for leave to apply for judicial review, Order 53 rule 3(3) of the Rules of the High Court, Cap. 4A provides that the Court may determine the application without an oral hearing.  The applicant did not request an oral hearing, and the Judge did not err in dealing with her application on the papers.  As to the appeal to this Court, the applicant had elected for her appeal to be dealt with on the papers.       

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

10.  As the statutory requirements for giving leave to appeal are not met, we dismiss the notice of motion.

CACV 341/2020

[2021] HKCA 667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 341 OF 2020

(ON APPEAL FROM HCAL NO. 438 OF 2018)

_________________________________

_________________________________

___________________

J U D G M E N T

___________________

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) of 27 July 2020 in HCAL 438/2018 refusing to grant leave to the applicant to apply for judicial review against the decision of Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 15 March 2018 in which the Board confirmed the decisions of the Director of Immigration (“the Director”) dated 11 August 2016 and 5 July 2017.

2.  On 10 August 2020, the applicant consented to her appeal being disposed of on the papers.  As it is appropriate to do so, we have accordingly proceeded to dispose the present appeal on paper.

Background

3.  The Applicant is a 54-year-old national of the Philippines who last arrived in Hong Kong on 17 May 2013 with permission to work as a foreign domestic helper. After the termination of her employment on 20 April 2014, she was unable to find further employment.  However, she did not depart and instead overstayed, and on 14 August 2015 she surrendered to the Immigration Department. On 25 January 2016, she raised a non-refoulement claim by way of written representation on the basis that if she returned to the Philippines she would be harmed or killed by some unknown men who had earlier killed her husband over some land dispute.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1599. 

4.  By the Notice of Decision dated 11 August 2016 and Notice of Further Decision dated 5 July 2017, 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].

5.  The applicant appealed to the Board and after the hearing on 24 November 2017, the appeal was dismissed on 15 March 2018.  For the reasons stated in [64] and [75] of the decision, the Board accepted the applicant’s claim that (a) her husband was killed by unidentified persons as described by the applicant and the killing was motivated by a land dispute; (b) the applicant was assaulted when she saw her husband being beaten up and she lost consciousness thereafter; and (c) the loss of the applicant’s house by fire and her dispossession from the land which she claimed being occupied and farmed by persons unnamed and that she does not have her own home to return in the Philippines.  The Board also noted that she got 4 children born between 1991 to 2005 but they did not come to Hong Kong and are currently residing in the Philippines with their relatives. 

6.  Having considered all the evidence in the case, the Board was not satisfied that the applicant faced a real risk of harm as she claimed for the reasons that as the land was taken over by the unknown men and those men should have no further interest in her after all these years.  The fact that the applicant remained in the village for almost 1 year and 9 months after the killing of her husband and her return visit in 2013 during which she was not threatened and unharmed suggested she was not at real risk of serious harm and she does not face a real risk of harm if refouled.  The Board further found the applicant arrived in Hong Kong in November 2011 and her delay in applying for protection in January 2016 had undermined her claim to hold a genuine fear of harm if refouled.  In any event, internal relocation is a viable option and reasonable state protection would further lower the risk.  For the aforesaid reasons, her claim for non-refoulement protection failed on all applicable grounds.

The Judge’s decision

7.  On 19 March 2018 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given.  In her supporting affirmation of the same date she merely stated that she wanted to review the decisions because the Director and the Board disregarded her dangerous situation, but she did not provide any particulars or elaboration as to why or how it was so, nor did she put forward any other ground for her intended challenge.   

8.  The applicant did not request for an oral hearing and the application was disposed on paper.  By the CALL-1 Form of 27 July 2020, the leave application was refused.  The Judge, after summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, gave the following reasons in refusing leave at [11] to [13] of the CALL-1 Form:

“11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his or her 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 NupurMst v Director of Immigration[2018] HKCA 524.

12.  In the Applicant’s case, 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 her 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.

13.  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.”

The Appeal

9.  On 10 August 2020, the applicant filed her Notice of Appeal.  She did not provide any grounds of appeal save for saying that she was not satisfied with the result and requested the court to review her case.

10.  In her written submissions, she advanced the following:

(1)  The Board was insensitive to her case and the real situation in the Philippines and therefore erred in its judgment.

(2)  The Board overlooked or was misguided to believe that the Philippines, like Hong Kong, is safe and practises rule of law.

(3)  The Judge dismissed her case by wrongly believing that her case was not real and she came to Hong Kong not for seeking protection but employment.

(4)  The Board wrongly believed that her case only involved private and personal dispute.  She received threat that she would be the next one to be killed but she did not report the matter to the police as she did not think the police would protect her.  She came to Hong Kong to avoid the attackers.

(5)  The police in the Philippines is unfair and would just turn a blind eye to whatever happens in her case.

(6)  The Board failed to look into her case in the context of a Filipina and ignored her problem in the Philippines and it just selectively quoting sources that fit the purpose.

General Principles

11.  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

12.  The applicant had failed to pinpoint any error of law or raise any discernible grounds against the Judge’s decision and her intended appeal is bound to fail.

13.  The applicant’s complaints against the Board were unmeritorious and ill-founded.  As summarised at [5] and [6] of this judgment, we are satisfied that the Board has fully considered the applicant’s case and reached the right conclusion that despite the killing of her husband in 2010 and the assault inflicted on her in the same incident, she did not receive any further harm or threat in the Philippines before she left for Hong Kong in 2011 or during her return visit in 2013.  There is no real risk of any form of proscribed harm upon her return to the Philippines.

14.  After our careful review of the papers available, we do not find any error of law or procedural unfairness or irregularities in the Board’s decision, nor any failure on its part to apply high standard of fairness in its consideration and assessment of the applicant’s claim.  We see no merit in the applicant’s case.

15.  For these reasons, the Judge did not err in refusing leave to apply 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.