RE TARAMPI GASAT AGUIR

CACV 394/2021

[2022] HKCA 1528

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 394 OF 2021

(ON APPEAL FROM HCAL NO. 2534 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1.  On 25 April 2022, this Court handed down the judgment ([2022] HKCA 572) dismissing the applicant’s application to appeal an order of Deputy High Court Judge Bruno Chan given on 12 August 2021 who refused her application for leave to apply for judicial review in respect of her non‑refoulement claim.

2.  On 27 April 2022, the applicant filed a notice of motion applying for leave to appeal this Court’s judgment to the Court of Final Appeal.  The applicant has also lodged written submissions on 4 May 2022.

3.  Having considered the applicant’s notice of motion and written submissions, 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 at [3] in our judgment.  We shall not repeat them here.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484) provides that 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 stated simply that the applicant would face danger if she is to return to the Philippines.  The notice of motion stated the following in summary :

1)  The applicant will be in grave danger if she returns;

2)  She would be harmed or killed by her ‘husband / creditor’ for ‘refusing him to repaying his debts’;

3)  The Torture Claims Appeal Board erred on its assessment of the situation in the Philippines; and

4)  The Philippines authority will not protect the applicant.

7.  As for the written submissions, the applicant asserts similar contentions as stated in her notice of motion.  She further alleges the severity of her case and disagrees with the assessment of the authorities.  The written submissions stated the following in summary :

1)  The applicant as a non-refoulement claimant does not have legal knowledge;

2)  Loan sharks in the Philippines are notorious for resorting to threats and violence;

3)  The Philippines authority is corrupt;

4)  The applicant cannot relocate to another location without living like a fugitive; and

5)  The applicant suffers from mental, political and religious conflicts.

8.  In our view, what have been put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

9.  Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

10.  As the statutory requirements for giving leave to appeal are not met, accordingly, we dismiss the notice of motion dated 27 April 2022.

CACV 394/2021

[2022] HKCA 572

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 394 OF 2021

(ON APPEAL FROM HCAL NO. 2534 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court) :

I.  The appeal

1.  This is the appeal against the decision of Deputy High Court Judge Bruno Chan (the ‘Judge’)  dated 12 August 2021, where he refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (the ‘Board’)  dated 25 October 2018.

2.  The applicant consents to this appeal being determined on paper without an oral hearing.  This is our judgment.

II.  Background

3.  The applicant is a national of the Philippines.  She came to Hong Kong on 24 August 2014 and worked as a foreign domestic helper.  Her employment contract having been prematurely terminated in October 2014, she did not depart and overstayed. On 1 October 2015, she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her husband and/or his creditor for refusing to assist him in repaying his debts.

4.  The details of the applicant’s claim have been summarised by the Judge at [2]-[4] of the CALL-1 Form dated 12 August 2021 (published as [2021] HKCFI 2306)  (the ‘CALL-1 Form’).

III.  The Director’s Decision

5.  The Director of Immigration (the ‘Director’)  decided against the applicant’s claim on 28 February 2018.  The decision covered all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (‘Torture Risk’), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (‘HKBOR’)  being violated including right to life under Article 2 (‘BOR 2 Risk’)  and risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (‘BOR 3 Risk’), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (‘Persecution Risk’).

6.  The Director found no substantial grounds for believing that the applicant would be harmed by her husband or his creditor if she returned to the Philippines.  As it was a private monetary dispute, state or police protection was available.  Further, based on reliable and objective Country of Origin (‘COI’)  information, the Director found that reasonable internal relocation alternatives were available to the applicant.

IV.  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Board.  An oral hearing was held on 12 June 2018.  On 25 October 2018, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.

8.  The Board found that the applicant failed to establish a genuine and substantial risk of being killed by her husband or his creditors if she returned to the Philippines.  In any event, state/police protection and internal relocation alternatives were available.

V.  The Judge’s Decision

9.  On 12 November 2018, the applicant filed a Form 86 with a supporting affirmation.  In her supporting affirmation, she stated that the decision disregarded her dangerous situation without putting forth any proper ground for her intended challenge.

10.  As set out in [12]-[13] of the CALL-1 Form, the Judge did not find any error of law or procedural unfairness in decisions of both the Director and the Board, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  The Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review, and he dismissed the applicant’s leave application.

VI.  The present appeal

11.  The applicant filed a notice of appeal on 17 August 2021.  In her notice of appeal, the applicant stated the following :

‘ I would like to reject and review the decision made by the Court. They disregard my dangerous situation.’

12.  This ground of appeal is a bare allegation without specifics or elaboration.

13.  The applicant did not lodge any written submissions, despite the directions given by the Registrar of Civil Appeals on 17 August 2021.  The applicant was therefore deemed to have abandoned her right to rely on written submissions and the application was dealt with on paper on the basis of the available documents and materials.

VII.  Our view

14.  We will repeat the approach of this Court in dealing with cases of this nature :

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 the 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 their decisions.

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.  In the determination for 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 a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

15.  In our view, there is no merit in the applicant’s appeal.

16.  Contrary to the applicant’s bare assertion that her alleged dangerous situation was disregarded, the Judge had considered the decisions of the Director and of the Board, and had provided proper reasons for refusing the application.  The applicant did not in her notice of appeal identify any specific errors, or any other specific potential grounds for reversing the Judge’s decision.

17.  We see no error in the Judge’s decision.  Accordingly, the appeal is dismissed.

Applicant, unrepresented, acting in person