RE MANUEL TRINIDAD AGUILAN

CACV 529/2021

[2022] HKCA 1583

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 529 OF 2021

(ON APPEAL FROM HCAL NO. 2205 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)  :

I. Leave to appeal to the Court of Final Appeal

1.  On 11 May 2022, this Court (Cheung JA and Cheng J)  handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge P Li given on 23 November 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 24 May 2022, for leave to appeal against our judgment to the Court of Final Appeal. 

4.  Having considered the applicant’s documents, 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.

5.  The applicant stated in her notice of motion the following :

‘ I would like to inform to Court of Final Appeal. There are some error in law of decision maker. I am disagree with the decision made by the director of immigration. As well as the adjudicator of torture claim appeal board. I do not think my case has been determined fairly. Because authorities totally relied on CAL form and web news. There is no such investigation in my case.’

6.  The applicant stated in her written submissions in summary the following points :

1)  Her case had not been dealt with fairly.

2)  Lack of interpretation service being given to her.

3)  It is unfair for the Judges to say that court cannot interfere with the findings of the Torture Claims Appeal Board.

II.  Our view

7.  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.

8.  The matters stated by the applicant in her notice of motion and written submissions 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 she has raised in her notice of motion and written submissions. 

9.  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

10.  For these reasons, the notice of motion dated 24 May 2022 is dismissed.

Applicant, unrepresented, acting in person

CACV 529/2021

[2022] HKCA 650

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 529 OF 2021

(ON APPEAL FROM HCAL NO. 2205 OF 2018)

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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 dated 23 November 2021 of Deputy High Court Judge P. Li who refused to grant leave to the applicant to apply for judicial review against the decisions of the Torture Claims Appeal Board (‘the Board’)  of 23 February 2017 (‘Board’s First Decision’)  and 9 August 2018 (‘Board’s Second Decision’).

2)  Background

2.  The applicant is a national of the Philippines.  She entered Hong Kong as a domestic helper but her contract was prematurely terminated in 2000 and she overstayed.  She raised a non-refoulement claim in March 2014 on the basis that if she returned home she would be harmed or killed by her brothers Daniel and Leonardo or her former partner, Mario, for becoming a Muslim.

3.  The details of the applicant’s claim have been summarized by the Judge at [2] to [11] of the CALL-1 Form.

3)  The Director’s Decisions

4.  The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 4 June 2015.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  of the Bill of Rights (‘BOR 3’), as well as her other statutory and convention rights against torture and persecution.

5.  The Director on 30 March 2017 invited the applicant to submit further materials on all applicable grounds for non-refoulement protection.  The Director decided against the applicant’s right to life claim on 25 April 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life)  of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 7 September 2016, the Board dismissed the applicant’s appeal against the Director’s decision on 23 February 2017 (‘Board’s First Decision’).  The applicant then appealed against the Director’s Further Decision to the Board.  No hearing was held.  The Board dismissed the applicant’s appeal against the Director’s Further Decision on 9 August 2018 (‘Board’s Second Decision’). 

7.  In the Board’s First Decision, the Board held that on the evidence, there was no state actors involved.  There was no well-founded fear that the applicant would be subjected to persecution.  There was no evidence that she would be subjected to severe ill-treatment if she was to return home.  There was no evidence that she would be subjected to torture.  Internal relocation was possible.  In the Board’s Second Decision, the Board held that there was no evidence showing that the applicant is at risk of harm to life from capital punishment inflicted by the Philippines government.

5)  Decision of the Judge

8.  The applicant filed a Form 86 with supporting affirmation before the Judge.

9.  The Judge assessed the applicant’s documents and held that the applicant did not point out any error in the Board’s decisions.  There was no error of law or procedural unfairness in the Board’s decisions.

6)  Grounds of appeal

10.  The applicant stated in her notice of appeal the following :

‘ I am disagree with the decision of authorities because it is toward to my life TCAB did not provide me any legal representation in my appeal this is the matter of high standard of fairness I am a common person so I am not aware of court procedure so I would like to review my case again’

11.  The applicant in her written submissions stated general complaints without elaborating or specifying how those relate to the particular facts or circumstances of her case.  The applicant complained that she had ‘never’ been provided with language and legal assistance.  This is not true.  According to the applicant’s non-refoulement claim form at Part 5 Questions 68 and 69, the applicant was provided with legal assistance.  According to the Board’s First Decision at paragraph 13, she was provided with an interpreter before the Board.

7)  Our view

12.  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 claims 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.

13.  In our view, there are no merits in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The applicant has not provided any proper ground for her appeal.

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

Applicant, unrepresented, acting in person