CACV 374/2022
[2022] HKCA 1808
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 374 OF 2022
(ON APPEAL FROM HCAL NO 563 OF 2019)
________________________
BETWEEN |
| | PAMPAG AMY PABLICO | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD | Putative
Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative
Interested Party |
_____________________
Before: Hon G Lam and Chow JJA in Court
Date of Written Submissions: 21 September 2022
Date of Judgment: 14 December 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 9 September 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 26 August 2022 (“the Order”) dismissing the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 20 February 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 July 2018.
BACKGROUND
2. The Applicant is a national of the Philippines. She last entered Hong Kong on 5 August 2016 with permission to remain and work as a foreign domestic helper until the expiration of her employment contract on 13 December 2016 or within 14 days of its termination, whichever was the earlier. The Applicant’s employment contract was prematurely terminated on 3 September 2016. She did not leave Hong Kong upon the expiry of her limit of stay, but overstayed instead. On 19 September 2016, she surrendered herself to the Immigration Department and raised a non-refoulement claim on the basis that, if she returned to the Philippines, she would be harmed or killed by her abusive husband. Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form ([2022] HKCFI 2640).
3. By a Notice of Decision dated 27 July 2018, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: torture risk[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 20 February 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §9 of the CALL-1 Form:
“In its decision the Board found no evidential basis in support of the Applicant’s claim that she will face any real risk of harm from her husband upon her return to the Philippines due to the low intensity and frequency of past ill-treatment from him, that in any event it was a private domestic dispute between them without any official involvement that state/police protection will be available to the Applicant if needed as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.”
5. On 27 February 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86. In her supporting affidavit of the same date, she merely stated that she could not go back to her home country as her life would be in danger there, and asked to be allowed to stay in Hong Kong forever.
THE JUDGE’S DECISION
6. On 26 August 2022, the Judge dismissed the Applicant’s application for leave to apply for judicial review for the following reasons:
“[10] On 27 February 2019, the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affidavit of the same date she merely stated that she cannot go back to her home country as her life is still in danger there but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.
…..
[12] In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim is a localized one and that 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: 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.”
THIS APPEAL
7. In her Notice of Appeal dated 9 September 2022, the Applicant stated that if she returned to her home country, she would be in grave danger and would be harmed by her husband.
8. In her 4-page written submissions dated 21 September 2022, the Applicant repeated the basis of her non-refoulement claim. She also said that her reasons for leaving her home country were to escape her abusive husband, give her family a better life, and have a fresh start.
DISCUSSION
9. The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration[2018] HKCA 524, at §14. In particular, 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, at §14(6)).
10. Further, the assessment of 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini[2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
11. The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 26 August 2022, and has failed to raise any viable ground of appeal against the Order.
12. The Applicant’s appeal has no merits, and is dismissed.
(Godfrey Lam)
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 of 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.