RE HUSSAIN ROWENA CAYABYAB

CACV 441/2021

[2022] HKCA 1446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 441 OF 2021

(ON APPEAL FROM HCAL NO. 2045 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.  Leave to appeal to the Court of Final Appeal

1.  On 26 January 2022, this Court (Cheung and Chow JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 1 September 2021 in which he refused to grant leave to the applicant to apply for judicial review.

2.  The facts and issues of the appeal as well as the Court’s reasons for dismissing it are set out in our judgment. We will not repeat them here.

3.  The applicant now applies, by a notice of motion filed on 10 February 2022, for leave to appeal against our judgment to the Court of Final Appeal. The applicant in his notice of motion raised two points for seeking leave to appeal which can be summarized as follows :

1)  The Court adopted the reasoning of the Board on a wholesale basis without questioning the process of the fact‑finding exercise. The question of general public importance is : what is the Court’s role when Board decisions are challenged before it. It is unknown how the credibility of the applicant was reached by the Board (‘Point 1’).

2)  The main complaint of the applicant is the fact‑finding process of the Board. It is wrong to conclude that the applicant’s credibility is questionable simply because there were inconsistencies in her evidence. Credibility should not be the sole decisive factor to conclude there is no risk of harm in the applicant being repatriated (‘Point 2’).

4.  Pursuant to the directions of the Registrar of Civil Appeals dated 10 February 2022, the applicant shall on or before 24 February 2022 lodge with the Court written submissions in support of her application for leave to appeal to the Court of Final Appeal. The applicant has not lodged any written submissions by the stipulated deadline. We will deal with this application on paper.

II.  Our view

5.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘Ordinance’) leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

6.  The matters stated by the applicant in his notice of motion do not constitute grounds for granting leave to the Court of Final Appeal. The applicant has failed to identify any question of general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the Ordinance. Nor is there any such question apparent to us from the matters he has raised in his notice of motion.

7.  Another important point is that none of what is contained in the applicant’s notice of motion had ever been mentioned in the Court below. They are new points taken on appeal which goes against the proper appellate principles: Flywin v Strong. In any event, we will address the notice of motion below.

8.  For Point 1, the role of the Court in judicial review is well established and does not require further clarification. How the Board assesses the credibility of an applicant is clearly fact specific.

9.  For Point 2, the Board did not merely find that the applicant was incredible simply because there were inconsistencies in her evidence. We have held at [7] of our judgment that the Board found ‘most aspects of the applicant’s evidence was contradictory’. She was not accepted as a witness of truth. This is a far outcry from being simply finding inconsistencies. None of her claims were credible. Not only did the Board rule on credibility, but the Board also concluded that the applicant had failed on all applicable grounds on non‑refoulement. There is hence no basis for the applicant’s complaint that her case was solely rejected on credibility alone.

10.  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b) of the Ordinance.

III.  Disposition

11.  For these reasons, the notice of motion dated 10 February 2022 is dismissed.

Applicant, unrepresented, acting in person

CACV 441/2021

[2022] HKCA 150

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 441 OF 2021

(ON APPEAL FROM HCAL NO. 2045 OF 2018)

________________________

________________________

________________________

J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)  The appeal

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan dated 1 September 2021 who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’).

2.  Pursuant to the written confirmation given by the applicant and the directions of the Registrar of Civil Appeals both dated 15 September 2021, the applicant has consented that this appeal may be disposed of on paper without an oral hearing.  We consider the arrangement proper and give our judgment below.

2)  Background

3.  The applicant is a national of the Philippines.  She worked in Hong Kong as a domestic worker between 1989 and 1993.  In 1994, she married a Hong Kong permanent resident and was given a dependent visa.  The marriage ended in divorce.  She has a daughter who was born in Hong Kong and a son who was born in the Philippines.  She was last allowed to stay in Hong Kong on 29 December 2004 as a visitor up to 5 January 2005 (subsequently extended to 20 January 2005)  but she overstayed.  She made a torture claim on the basis that she would be harmed or killed by her moneylenders for failure to settle her debts.  The torture claim was rejected in November 2013.  She then in August 2016 raised a non-refoulement claim on the same basis.

4.  The details of the applicant’s claim have been summarized by the Judge at [2]-[4] of the CALL-1 Form.

3)  The Director’s Decision      

5.  The Director of Immigration (‘the Director’)  decided against the applicant’s claims on 31 December 2016.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  and Article 2 (right to life)  of the Bill of Rights (‘BOR 3’ and ‘BOR 2’), as well as other statutory and convention rights against persecution except for torture claim.

4)  The Board’s Decision

6.  The applicant appealed against the Director’s decision to the Board.  After a hearing held on 20 April 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 27 July 2018.

7.  The Board found that most aspects of the applicant’s evidence was contradictory.  It does not accept the applicant as a witness of truth.  None of her claims were credible.  She has not made out her case.  As the fundamental claim failed, the Board did not consider internal relocation.  As the applicant’s children lived with the applicant in the Philippines in the past, the Board does not accept that the applicant’s assertions regarding her children were relevant.  The applicant failed on all applicable grounds.

5)  Decision of the Judge

8.  The Judge held that the applicant’s Form 86 and supporting affirmation were simply regurgitating her claim of risk of harm from her creditors, and it did not include any proper ground for the intended judicial review.  There was no error of law or procedural unfairness.  There was no reasonably arguable basis for the intended challenge.

6)  Grounds of appeal

9.  In short, the applicant’s notice of appeal and written submission contain the following grounds of appeal :

(1)  The Deputy Judge adopted the decision of the Board without giving reasons;

(2)  The Deputy Judge adopted a criminal standard of proof in finding inconsistencies in the applicant’s case rather than using a civil standard of balance of probabilities;

(3)  The Deputy Judge did not apply a generous interpretation of BOR 2/3;

(4)  The Deputy Judge did not consider country of origin information which is in the applicant’s favour;

(5)  The Deputy Judge did not consider persecution risk;

(6)  The Deputy Judge was wrong to accept the Board’s decision which was based on its adverse finding of the applicant’s credibility; and.

(7)  The Deputy Judge was wrong to hold that internal relocation was possible.  It is a fact that if the applicant returns she will die.

7)  Our view

10.  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.

11.  In our view, there are no merits in the applicant’s appeal.  The Board’s decision and the decision of the Judge had already made the position clear.

12.  All in all, the points as raised in the applicant’s notice of appeal and written submissions are complaints against the Board’s decision.  They are not errors to be found in the Deputy Judge’s decision.

13.  The Board’s rejection of the applicant’s claim was clearly based on its adverse finding of her credibility. The Judge was entitled to rely on the Board’s finding.  The Judge had not adopted any wrong standard in terms of proof.  In our view, the applicant could not even begin to rely on her other grounds of appeal when she is unable to demonstrate that she has a proper and credible basis for her underlying complaint.  We see no error in the Judge’s decision.  Accordingly, the appeal is dismissed.

The applicant, unrepresented, acting in person