CACV 119/2022
[2022] HKCA 1009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 119 OF 2022
(ON APPEAL FROM HCAL 559 OF 2019)
________________________
BETWEEN
| | PERATER ALICE PARCON | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative
Respondent |
| | DIRECTOR OF IMMIGRATION | Putative
Interested Party |
________________________
Before: Hon Cheung and Chow JJA in Court
Date of Written Submissions: 26 April 2022
Date of Judgment: 2 August 2022
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. On 12 April 2022, the Applicant, acting in person, filed a notice of appeal against the Order of the Honourable Madam Justice Anna Lai (“the Judge”) dated 15 March 2022 (“the Order”) refusing to grant her leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 22 February 2019. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 19 June 2018.
BACKGROUND
2. The Applicant is a national of the Philippines. She first arrived in Hong Kong as a domestic helper on 15 November 2013. After her last employment contract was prematurely terminated on 18 July 2016, she did not depart and had overstayed since 2 August 2016. On 13 January 2017, she surrendered to the Immigration Department. On 28 April 2017, she lodged a non-refoulement claim, alleging that if she were to be returned to the Philippines, her life would be in danger due to threats of harm from her husband. Details of the Applicant’s claim were summarised by the Judge at §§1-7 of the CALL-1 Form.
3. By a Notice of Decision dated 19 June 2018, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
4. The Applicant appealed the Director’s decision to the Board. On 22 February 2019, the Board dismissed the Appeal, and confirmed the Director’s decision (“the Board’s Decision”).
5. The Board considered that the Applicant’s claim was based on domestic violence from her husband, who was a drunkard, a drug addict and also a drug dealer. His acts of drug dealings, assaults and threats to the Applicant were criminal in nature which could be dealt with by the law enforcement agencies in the Philippines. The Board found that the Applicant was versatile, resourceful and independent, and so internal relocation was a real and workable option for her to avoid meeting her husband. She was well able to relocate to another city without any risk of being located by him.
THE JUDGE’S DECISION
6. On 27 February 2019, the Applicant filed her Form 86 to seek leave to apply for judicial review of the Board’s Decision.
7. On 15 March 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“13. The role of this Court is supervisory. The assessment of the NRC is primarily a matter for the Board (and the Director). Findings of facts is a matter exclusively within the province of the Board. This Court will not intervene unless there are errors of law or procedural unfairness or irrationality in its decision. Judicial review is not an avenue to revisit the Board’s assessment in the hope that the Court may consider the matter afresh.
14. In this case the Applicant has not been able to raise any valid ground to challenge the Board’s decision. The fact is that it has been established by the Board (and the Director) that her perceived risk of harm is a localized one. There are reasonable relocation options and 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.
15. Having considered the Board’s decision with rigorous examination and anxious scrutiny, the Court does not find any error of law or procedural unfairness in the process before the Board or in its decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational. There is no realistic prospect of success in the intended judicial review.”
THIS APPEAL
8. In her Notice of Appeal dated 12 April 2022, the Applicant sought to set aside the Order and requested for an order that leave to apply judicial review be granted.
9. In her grounds of appeal, the Applicant stated that she would like to reject and review the decision made by the Court, and alleged that “they” (presumably a reference to the Director, the Board and/or the Judge) disregarded her dangerous situation.
10. In her 3-page written submissions dated 14 April 2022, the Applicant stated that the findings of fact regarding the situation in the Philippines was an error of judgment, and she would be in grave danger if refouled. She also complained about the Board’s assessment of the country of origin information relating to the Philippines.
DISCUSSION
11. 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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14(6)).
12. Further, it is well established that assessment of the evidence, country of origin information, 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: Re Kartini[2019] HKCA 1022. No such ground has been made out by the Applicant.
13. The Applicant has failed to point to or substantiate any alleged error of the Judge in her decision dated 15 March 2022, and has failed to raise any viable ground of appeal against the Judge’s decision.
14. The Applicant’s appeal has no merits, and is dismissed.
(Peter Cheung)
Justice of Appeal | (Anderson Chow)
Justice of Appeal |
The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[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.