CACV 219/2022
[2022] HKCA 1240
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 219 OF 2022
(ON APPEAL FROM HCAL NO 2571 OF 2018)
_____________________
BETWEEN |
| | FAROL CRISTOPHER RAFAEL | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD | Putative
Respondent |
| | DIRECTOR OF IMMIGRATION | Putative
Interested Party |
_____________________
Before: Hon Chow JA and Ng J in Court
Date of Judgment: 20 September 2022
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J U D G M E N T
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Hon Ng J (giving the Judgment of the Court):
1. On 27 May 2022, the Applicant, who is acting in person, filed a notice of appeal against the decision made by Deputy High Court Judge Bruno Chan (“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 2 November 2018. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 9 February 2018.
Background
2. The Applicant is a national of the Philippines. He last arrived in Hong Kong on 28 July 2006 as a visitor with permission to remain up to 2 August 2006. When he did not depart and instead overstayed, he was arrested by the police on 18 March 2009. After he was referred to the Immigration Department for investigation, he raised a torture claim[1] claiming that, if refouled, he would be harmed or killed by his creditor over his outstanding debts. His torture claim was rejected by the Director on 3 February 2012. The Applicant then sought non-refoulement protection on the same basis. Details of the Applicant’s claim were summarised by the Judge at §§1-4 of the CALL-1 Form.
3. By a Notice of Decision dated 9 February 2018, the Director dismissed the Applicant’s non-refoulement claim on the remaining applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
4. The Applicant appealed against the Director’s Decision on 22 February 2018 to the Board. On 2 November 2018, the Applicant’s appeal was dismissed by the Board, and the Board confirmed the Director’s Decision (“the Board’s Decision”).
5. As summarised by the Judge at §8 of the CALL-1 Form, the Board found the Applicant’s evidence vague, inconsistent and unpersuasive such that it doubted the credibility of his claim of fear of harm from his creditor as a reason for overstaying in Hong Kong. In any event, even if his claim were true, it was a private monetary dispute between him and his creditor and state/police protection would be available to the Applicant upon his return to the Philippines. Accordingly, his claim for non-refoulement protection failed on all applicable grounds.
The Judge’s decision
6. On 15 November 2018, the Applicant filed his Form 86 against the Board’s Decision but no grounds for seeking relief were stated in the Form 86 or in his supporting affidavit of even date. Nor was the Applicant able to provide any proper grounds at the hearing of his application, as recorded by the Judge at §9 of the CALL-1 Form.
7. On 13 May 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“11. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 14 – 41 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.
12. Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
13. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”
8. Accordingly, the Judge refused to grant leave to apply for judicial review and dismissed the Applicant’s application.
This Appeal
9. In his Notice of Appeal dated 27 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 his grounds of appeal, the Applicant stated he wanted to appeal because he did not want to go home yet because his life was still in danger.
11. The Applicant has failed to lodge a skeleton argument in support of his appeal in accordance with the directions of the Registrar of Civil Appeals given on 13 June 2022. Accordingly, he is deemed to have waived his 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 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 the decision of the Board: Re Kartini[2019] HKCA 1022.
14. The Applicant has failed to raise any viable grounds of appeal against the Judge’s decision dated 13 May 2022 in his Notice of Appeal.
15. 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.