Case Detail

CACV 433/2022, [2023] HKCA 593

On Appeal From [2022] HKCFI 3265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 433 OF 2022

(ON APPEAL FROM HCAL NO 2498 OF 2018)

________________________

BETWEEN
	BEO JOY EPALAN	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD/	Putative
	NON-REFOULEMENT CLAIMS	Respondent
	PETITION OFFICE
	and
	DIRECTOR OF IMMIGRATION	Putative
		Interested Party

_____________________

Before:

Hon Chow JA and S T Poon J in Court

Date of Written Submissions:	31 March 2023
Date of Judgment:	2 May 2023

________________

J U D G M E N T

________________

Hon Chow JA (giving the Judgment of the Court):

1. On 8 March 2023, this Court gave its judgment (“the CA Judgment”) dismissing the Applicant’s appeal against the order of Deputy High Court Judge K W Lung dated 25 October 2022 refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 8 October 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration dated 27 February 2018 rejecting her non-refoulement claim.

2. By Notice of Motion dated 20 March 2023, the Applicant applies for leave to appeal the CA Judgment to the Court of Final Appeal. In the Notion of Motion, the Applicant states as follows:

“I would like to inform to Court of Final Appeal. There some error in law my decision maker authorities. I am disagree with decision made by the Director of Immigration as well as decision made by the Adjudicator of Torture Claim Appeal Board. They were totally relied on news sources which are officially not recognized.” [sic]

3. In her written submissions dated 31 March 2023, the Applicant complains about the lack of (i) interpretation service, and (ii) sound judgment and fairness throughout the non-refoulement claim process. The Applicant also contends that the court and the authorities were negligent and failed to “perform a standard duty of care that … specifically targeted … non-refoulement claimant like [her]”.

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. The Applicant’s complaint about the lack of interpretation service is a new specific ground of complaint which was not previously raised by her in the original application for leave to apply for judicial review, or in her appeal to the Court of Appeal. It is not open to the Applicant to raise a fresh ground of complaint which is fact sensitive for the first time in her application for leave to appeal to the Court of Final Appeal. Further, it is well established that a non-refoulement claimant is not entitled to free interpretation service at all times that he/she may desire. Her other complaints are merely bare and general allegations which cannot constitute any valid ground of appeal.

6. 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. We are satisfied that the intended appeal has no merits and no reasonable prospect of success. There is also no basis to grant leave to appeal on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

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

(Anderson Chow)
Justice of Appeal

(S T Poon)
Judge of the Court of
First Instance

The Applicant, acting in person

CACV 433/2022

[2023] HKCA 267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 433 OF 2022

(ON APPEAL FROM HCAL NO 2498 OF 2018)

________________________

BETWEEN
	BEO JOY EPALAN	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD/	Putative
	NON-REFOULEMENT CLAIMS PETITION OFFICE	Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative
		Interested Party

_____________________

Before:

Hon Chow JA and S T Poon J in Court

Date of Judgment:

8 March 2023

_______________

J U D G M E N T

_______________

Hon Chow JA (giving the Judgment of the Court):

1. On 1 November 2022, the Applicant filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 25 October 2022 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 8 October 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 February 2018 rejecting her non-refoulement claim.

BACKGROUND

2. The Applicant is a national of the Philippines. She last entered Hong Kong as a foreign domestic helper on 2 April 2016 and was permitted to remain until 2 April 2018. Her employment contract was terminated prematurely on 17 April 2016. She was required to leave Hong Kong on or before 1 May 2016. She did not do so, and has overstayed in Hong Kong since 2 May 2016. On 13 May 2016, she surrendered herself to the Immigration Department. On 11 July 2016, she lodged a non-refoulement claim alleging that, if refouled, she would be harmed or killed by a land developer called Valdez Tin due to a land dispute. 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 27 February 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 the Director’s decision to the Board. On 8 October 2018, 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 §§8-10 of the CALL-1 Form, as follows:

“[8] … On 12 July 2018, the Board conducted an oral hearing for her appeal, during which she gave evidence with the assistance of an interpreter [45].
[9] The Board sought clarifications on certain material aspects of the applicant’s claim [45]-[63]. Having considered all the evidence, the Board found that the crux of her claim, i.e., the land dispute, was vague and unconvincing [66]. The Board also found that the claimed fear of harm from the land dispute contained discrepancies in her written statements and oral evidence [68]. Further, the Board noted that the applicant was never inflicted with any harm [69]. In these premises, the Board refused to accept that the applicant was a credible witness [71].
[10] On the basis of lack of credibility, the Board rejected the applicant’s claim and dismissed her appeal.”

THE JUDGE’S DECISION

5. On 7 November 2018, 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 affirmation of the same date, the Applicant said that she could not go back to her country as it was not safe for her to do so.

6. On 25 October 2022, the Judge refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[16] As to the ground [mentioned in the Applicant’s affirmation], this reason had been considered and rejected by the Board. There is no valid ground to challenge the Board’s Decision.
[17] 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.
[18] The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

THIS APPEAL

7. In her Notice of Appeal dated 1 November 2022, the Applicant put forward the following ground(s) of appeal (sic):

“I am disagree with the decision made by Director of Immigration as well the Torture Claim Appeal Board. I do not think my case was determined fairly.” [sic]

8. The Applicant has failed to lodge any skeleton argument in support of her appeal in accordance with the directions given by the Registrar of Civil Appeals on 14 December 2022. Accordingly, the Applicant is deemed to have waived her right to have an oral hearing of the appeal, and elected to have the appeal disposed of on paper.

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 is an 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 show any error in the Judge’s decision of 25 October 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.

(Anderson Chow)
Justice of Appeal

(S T Poon)
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.

BEO JOY EPALAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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