CACV 220/2022
[2022] HKCA 1168
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 220 OF 2022
(ON APPEAL FROM HCAL 661 OF 2019)
________________________
BETWEEN |
| | ALAMO MICHAEL MANUEL | 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 Hearing: 16 August 2022
Date of Judgment: 20 September 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 27 May 2022, the Applicant, acting in person, filed a notice of appeal (“the Notice of Appeal”) against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 24 May 2022 (“the Order”) refusing to grant him leave to apply for judicial review. The intended judicial review was against the decisions of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 19 January 2017 and 22 February 2019, whereby the Board dismissed the Applicant’s appeals against the decisions of the Director of Immigration (“the Director”) dated 1 April 2015 and 7 April 2017 respectively.
BACKGROUND
2. The Applicant is a national of the Philippines. He came to Hong Kong as a visitor on 10 February 2009 and was permitted to stay, after extension, until 3 March 2009. He overstayed and was arrested on 21 May 2009. He lodged a torture claim with the Immigration Department on 21 September 2009, which was later taken as a non-refoulement claim and assessed under the Unified Screening Mechanism. The Applicant alleged that, if refouled to the Philippines, he would face threats to his life from (i) a gang leader (“Tisoy”) for whom he had worked because he wished to quit his illegal activities, and (ii) his former girlfriend’s father (“Buddy”) who did not approve of the Applicant’s relationship with his daughter because the Applicant was a Christian and because his daughter died as a result of a gunfight between the Applicant and another group of people in a shopping mall. Details of the Applicant’s claim were summarised by the Judge at §§1-7 of the CALL-1 Form ([2022] HKCFI 1539).
3. By a Notice of Decision dated 1 April 2015 (“the Director’s First Decision”), the Director dismissed the Applicant’s non-refoulement claim on the following applicable grounds: risk of torture[1], BOR 3 risk[2], and persecution risk[3].
4. By a Notice of Further Decision dated 7 April 2017 (“the Director’s Second Decision”), the Director dismissed the Applicant’s non-refoulement claim based on BOR 2 risk[4].
5. The Applicant appealed the Director’s decisions to the Board. On 19 January 2017, the Board dismissed the Applicant’s appeal against the Director’s First Decision (“the Board’s First Decision”). On 22 February 2019, the Board dismissed the Applicant’s appeal against the Director’s Second Decision (“the Board’s Second Decision”).
6. In relation to the appeal against the Director’s First Decision, the Board, having considered the Applicant’s evidence, agreed with the Director’s assessment that the level of risk of harm upon the Applicant’s return to the Philippines was low because “(i) there was no evidence to show that Tisoy intended to kill him; (ii) judging from his experience, there was no evidence to show that Buddy had a strong intention of killing him; (iii) state protection would be available to him; and (iv) internal relocation was a viable alternative” (see §§9 & 11 of the CALL-1 Form).
7. In relation to the appeal against the Director’s Second Decision, the Board, having considered the Applicant’s evidence, held that the Applicant had failed to show that his right to life would be violated upon return to the Philippines (see §12 of the CALL-1 Form).
THE JUDGE’S DECISION
8. On 8 March 2019, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Second Decision. In the Form 86, the Applicant stated that the “[j]udgment, order, decision or other proceedings in respect of which relief is sought” was “[t]he decision of the Torture Claims Appeal Board/Adjudicator, made on 22nd February 2019 dismissing the appeal by ruling that the Applicant fails to establish a case for non-refoulement whether under the principles of torture or BOR 2 or BOR 3 or persecution”. The Applicant was mistaken about the scope of the Board’s Second Decision, which only covered his non-refoulement claim based on BOR 2 risk, but not torture risk, BOR 3 risk or persecution risk. The Board’s assessment in respect of the latter risks was contained in the Board’s First Decision which, as pointed out by the Judge at §13 of the CALL-1 Form, had become final.
9. The Form 86 did not set out any intended ground of judicial review. In his affirmation filed in support of the application, the Applicant said that the Board’s Second Decision was biased and unreasonable without any further particulars or elaboration.
10. On 24 May 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“18. The applicant has not raised any valid ground to challenge the Board’s [Second] Decision.
19. The Court does not find any error of law or procedural unfairness in the Board’s [Second] Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.”
THIS APPEAL
11. In the Notice of Appeal, the Applicant merely stated that he wanted to challenge the decision of the Judge.
12. In his 3-page written submissions dated 4 July 2022, the Applicant repeated his alleged fear that he would be killed or harmed by the “gang” or his former girlfriend’s father upon return to the Philippines. He complained that the Adjudicator of the Board did not give him enough time, acted like an opponent, and did not keep a neutral position. He also contended that the Judge’s decision was not correct, but failed to give any particulars or elaboration in respect of this contention.
13. At the hearing of the appeal, the Applicant had nothing to add.
DISCUSSION
14. In relation to the Applicant’s complaints that the Adjudicator did not give him enough time or did not act in a neutral manner, these are new complaints which were not raised before the Judge. Generally speaking, in an appeal against refusal of leave to apply for judicial review, an applicant for non-refoulement protection is not entitled to rely on grounds of judicial review which were not raised before the first instance judge. This is because 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)). In any event, the Applicant’s aforesaid complaints are general and lack particulars, and cannot constitute viable grounds of appeal against the Order.
15. Similarly, the Applicant’s repetition of a fear of harm upon refoulement, or his general allegation that the Judge’s decision is not correct without particulars or elaboration, cannot constitute viable grounds of appeal against the Order.
16. The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 24 May 2022.
17. 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] 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.
[4] 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.