Case Detail

CACV 205/2022

[2022] HKCA 1613

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 205 OF 2022

(ON APPEAL FROM HCAL NO 756 OF 2019)

________________________

BETWEEN
	RENIDO ANTONIO B. ALIAS RENIDO ANTONIO BALASWIT	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

_____________________

Before: Hon Chow JA and Ng J in Court

Date of Written Submissions: 11 October 2022

Date of Judgment: 31 October 2022

_________________

J U D G M E N T

_________________

Hon Ng J (giving the Judgment of the Court):

1. On 20 September 2022, this Court gave its judgment (“the CA Judgment”) dismissing the Applicant’s appeal against the order made by Deputy High Court Judge K.W. Lung on 13 May 2022 refusing to grant leave to the Applicant to apply for judicial review of the decision of the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 8 March 2019 whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 15 March 2018.

2. The Applicant now applies by Notice of Motion dated 10 October 2022 for leave to appeal the CA Judgment to the Court of Final Appeal. In the Notice of Motion, the following is stated:

“I would like to challenge the decision”.

3. In the Applicant’s written submissions dated 11 October 2022, she simply stated some background facts and failed to identify any proposed ground of appeal against the CA Judgment.

4. Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be) 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.

5. No question of great general or public importance involved in the proposed appeal is identified in the Notice of Motion. We are unable to see any such question being involved in the proposed appeal. There is also no basis to grant leave to appeal on the “otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

6. Accordingly, the application for leave to appeal is refused and the Notice of Motion is dismissed.

(Anderson Chow)
Justice of Appeal

(Peter Ng)
Judge of the Court of
First Instance

The Applicant acting in person.

CACV 205/2022

[2022] HKCA 1236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 205 OF 2022

(ON APPEAL FROM HCAL NO 756 OF 2019)

_____________________

BETWEEN
	RENIDO ANTONIO B ALIAS RENIDO ANTONIO BALASWIT	Applicant

	and
	TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	DIRECTOR OF IMMIGRATION	Putative Interested Party

_____________________

Before: Hon Chow JA and Ng J in Court

Date of Judgment: 20 September 2022

_________________

J U D G M E N T

_________________

Hon Ng J (giving the Judgment of the Court):

1. On 18 May 2022, the Applicant, who is acting in person, filed a notice of appeal against the decision made by Deputy High Court Judge K W Lung (“the Judge”) on 13 May 2022 refusing leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 8 March 2019. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 15 March 2018.

Background

2. The Applicant is a national of the Philippines. She entered Hong Kong in 1993 as a foreign domestic helper. However, there was no immigration record of the Applicant since 2005. On 6 June 2016, she surrendered to the Immigration Department and claimed that she had overstayed in Hong Kong since 2005. On 9 March 2017, she lodged a non-refoulement claim, on the basis that, if refouled, she would be harmed or killed by her creditor. Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form.

3. By a Notice of Decision dated 15 March 2018, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4. The Applicant appealed against the Director’s decision. On 8 March 2019, the Applicant’s appeal was dismissed by the Board, and the Board confirmed the Director’s decision (“the Board’s Decision”).

5. The Board considered the Applicant’s evidence to be inconsistent and lacked objective proof and noticed that her manner in giving evidence at the oral hearing of her appeal was evasive and unforthcoming. It identified several matters that were inconsistent with the objective information and devoid of common sense. As to the debt, the Applicant stated that she no longer knew the whereabouts of her creditor or whether he was still alive. The Board also scrutinized the alleged debt in detail and concluded that the alleged sum and the alleged failure to repay were unsubstantiated. Accordingly, her claim for non-refoulement protection failed on all applicable grounds.

The Judge’s decision

6. On 19 March 2019, the Applicant filed her Form 86 against the Board’s Decision.

7. On 13 May 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“15. The applicant has not been able to raise any valid ground to challenge the Board’s Decision.
16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

8. Accordingly, the Judge refused to grant leave to apply for judicial review and dismissed the Applicant’s application.

This Appeal

9. In her Notice of Appeal dated 18 May 2022, the Applicant requested to set aside the Order dated 13 May 2022 by the Judge and that leave to apply for judicial review be granted.

10. In her grounds of appeal, the Applicant simply stated that she wanted to challenge the decision.

11. The Applicant has failed to lodge a skeleton argument in support of her appeal in accordance with the directions of the Registrar of Civil Appeals given on 13 June 2022. Accordingly, she is deemed to have waived her right to have an oral hearing of the appeal, and the appeal shall be considered on paper only.

Discussion

12. 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)).

13. The Applicant has not raised any viable grounds of appeal against the Judge’s decision dated 13 May 2022 in her Notice of Appeal by simply saying she wanted to challenge the decision.

14. Accordingly, the Applicant’s appeal has no merits, and is dismissed with no order as to costs.

(Anderson Chow)
Justice of Appeal

(Peter Ng)
Judge of the
Court of First Instance

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.

RENIDO ANTONIO B. ALIAS RENIDO ANTONIO BALASWIT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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