CACV 375/2022
[2022] HKCA 1809
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 375 OF 2022
(ON APPEAL FROM HCAL NO 580 OF 2019)
________________________
BETWEEN |
| | RAMOS IVY VANESSA MARIQUIT | 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: 19 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 13 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 31 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 1 February 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 20 July 2018.
BACKGROUND
2. The Applicant is a national of the Philippines. She last entered Hong Kong on 25 August 2017 with permission to remain and work as a foreign domestic helper until the expiration of her employment contract on 25 August 2019 or within 14 days of its termination, whichever was the earlier. Her employment was prematurely terminated in early October 2017. She did not depart upon the expiry of her limit of stay, and overstayed instead. On 15 November 2017, she surrendered herself to the Immigration Department and raised a non-refoulement claim alleging that, if she returned to the Philippines, she would be harmed or killed by her abusive former cohabitee for leaving him. Details of the Applicant’s claim were summarised by the Judge at §§1-4 of the CALL-1 Form ([2022] HKCFI 2699).
3. By a Notice of Decision dated 20 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 1 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 §8 of the CALL-1 Form:
“In its decision the Board found no evidence from the Applicant of any real intention from her former partner to seriously harm or kill her other than her own speculations, that she never found it necessary to seek police assistance regarding his threats, and that in any event it was a private domestic dispute between them without any official involvement that state/police protection would be available to the Applicant upon her return to the Philippines as well as reasonable internal relocation for her to safely move to other part of the country away from her home district without any risk of being located by her former partner that her claim for non-refoulement protection failed on all applicable grounds.”
5. On 28 February 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.
THE JUDGE’S DECISION
6. On 31 August 2022, the Judge dismissed the Applicant’s application for leave to apply for judicial review for the following reasons:
“[9] On 28 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 or in her supporting affidavit of the same date in which she stated that she rejects the decision as it disregarded her dangerous situation but without providing any details or particulars or elaboration as to how it did so, nor did she put forth any other proper ground for her intended challenge or 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.
…..
[11] In the Applicant’s case, the fact is that it has been correctly 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.
[12] 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.
[13] For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”
THIS APPEAL
7. In her Notice of Appeal dated 13 September 2022, the Applicant stated that “she [was] not satisfied with the Decision because [it is] away from facts and reality which are related with [her case]. There is no transparency in these Decision”.
8. In her 5-page written submissions dated 19 September 2022, the Applicant repeats the basis of her non-refoulement claim, and makes some general complaints against the police and other authorities in the Philippines. She also says that it is very difficult to get justice in the corrupt environment there, and asks to be allowed to stay in Hong Kong until her problem in her home country has been resolved.
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 31 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.