RE ALAMAN JEROME VILLA

CACV 47/2022

[2022] HKCA 1028

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 47 OF 2022

(ON APPEAL FROM HCAL 475 OF 2019)

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J U D G M E N T

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Hon Au JA (giving judgment of the Court):

1.  On 25 May 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au JA and Lisa Wong J)  judgment of 13 May 2022 (“the Judgment”)  ([2022] HKCA 635). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge P Li dated 18 January 2022, refusing his application for leave to apply for judicial review ([2022] HKCFI 139).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if 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.

4.  In his Notice of Motion, the applicant stated:

“We are setting out motion to appeal on the grounds that lower court judges fails to consider the risk of life factor and assessment is too rush to see my actual grounds of risk to life under the BOR if I return back to Philippines.” (sic)

5.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 16 June 2022.  In particular, in those submissions, he stated that:

“It stated in BOR and CIDTP that life in danger with be on individual feelings and apprehension I if I back to my country in the Philippines. and that is the grounds never heard as the lover courts only rely on prima facie evidence rather than circumstance evidence base on my statement e.g.” (sic)

6.  In our view, his intended appeal is wholly without merit.  The matters raised in his Notice of Motion and written submissions are vague and bare assertions and do not constitute proper grounds of appeal.  His intended appeal must fail on this basis alone.

7.  Further, as stated at [15] of the Judgment, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Re Md Shohel Sheak[2018] HKCA 714 at [13]; and Re Limbu Birkhaman[2019] HKCA 50 at [11].

8.  In any event, the applicant’s contentions are fact-specific and do not relate to any question of great general or public importance.

9.  Accordingly, he failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

10.  For these reasons, the applicant’s intended appeal has no merit.  Accordingly, the Notice of Motion filed on 25 May 2022 is dismissed.

The applicant acting in person

CACV 47/2022

[2022] HKCA 635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 47 OF 2022

(ON APPEAL FROM HCAL 475 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Au JA (giving judgment of the court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge P Li (“the Deputy Judge”)  set out in the Form CALL-1 dated 18 January 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”)  ([2022] HKCFI 139).

2.  The intended judicial review is to challenge the decisions of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 8 December 2016 and 14 February 2019 (collectively referred as “the Board’s Decisions”), dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”)  dated 30 January 2015 and 29 March 2017 (collective referred as “the Director’s Decisions”)  rejecting the applicant’s non-refoulement claim.

Background

3.  The applicant is a national of the Philippines.  He last arrived in Hong Kong on 1 October 2009 and was allowed to stay in Hong Kong until 15 October 2009.  He then overstayed and was arrested by the police on 30 October 2009 and lodged a non-refoulement claim on 1 November 2009 on the basis that he would be harmed or killed by the members of a drug syndicate. Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] - [9] of the Leave Decision.

4.  By a Notice of Decision dated 30 January 2015, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR3 risk[2], and persecution risk[3]. Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was unsubstantiated.

5.  By a Notice of Further Decision dated 29 March 2017, the Director further rejected the applicant’s non-refoulement claim on the basis of BOR2 risk[4].

6.  On 11 February 2015, the applicant appealed against the Director’s Decision dated 30 January 2015 to the Board.  The applicant attended the hearing before the Board on 19 October 2015 but elected not to give evidence.  The Board dismissed his appeal on 8 December 2016.  The Board found that the applicant did not raise any claim when he was in Macau or China or when he first entered Hong Kong on 18 August 2009 and only raised a claim after he was arrested for overstaying.  Such conduct was inconsistent with his alleged fear for his life.  Having considered and assessed the evidence, the Board concluded that the applicant failed to substantiate his claim on all applicable grounds including torture risk, BOR3 risk, and persecution risk.  The Board further found that state protection and reasonable internal relocation options were available to the applicant.  Accordingly, his appeal was dismissed.  On 14 February 2019, the Board further dismissed his application for late filing of his Notice of Appeal in relation to BOR2 risk and in any event, further considered that the applicant’s intended appeal had no prospect of success.

The Leave Decision

7.  On 19 February 2019, the applicant filed a Form 86 and a supporting affidavit applying for leave to apply for judicial review of the Board’s Decisions.[5]  He did not provide any ground of review in his Form 86 or his supporting affidavit.  The applicant attended a hearing before the Deputy Judge on 1 November 2021 and a Tagalog interpreter was present to provide language assistance.

8.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  The Deputy Judge held that:

“17. In judicial review, the finding of facts is the duty of the TCAB. In general, this court would not interfere. This court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational.

18. The applicant had delayed the claim until after his arrest for overstaying. There was no explanation whatsoever. This substantially damage the credibility of his claim. The adjudicator was right to refuse his late filing of the notice of appeal in relation to the BOR 2 decision of the Director. I agree with the reasons summarised in paragraphs 12-13 above. They fully support the TCAB decisions.

19. I am satisfied that there is no error of law nor is there any procedural irregularity. It is rational.

Conclusion

20. The Applicant’s claim is not reasonably arguable.  There is no realistic prospect of success.  I refuse leave for judicial review.”

The Appeal

9.  On 24 January 2022, the applicant filed a Notice of Appeal against the Leave Decision.  However, no ground was given in support of his present appeal.

10.  Pursuant to the directions this Court dated 4 March 2022, the applicant lodged his written submissions on 28 March 2022.  In his written submissions, he repeated the factual background of his non-refoulement claim.  He further complained that the Director “made an absolute conclusion based on their research [and] not with the circumstantial evidence” and that he needed not provide written evidence to prove that there was a threat to his life when he felt his life was endangered by his enemy.

11.  We heard the appeal on 26 April 2022.  A Tagalog interpreter was present to provide language assistance.  At the hearing, the applicant confirmed that he had nothing further to add to his written materials.

Discussion

12.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14].

13.  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.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A.

14.  Nowhere in his Notice of Appeal or written submissions did the applicant identify any error in the Leave Decision.  It is well-established that in the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: see Nupur Mst v Director of Immigration, supra, at [14]; Re Md Shohel Sheak[2018] HKCA 714 at [13]; and Re Limbu Birkhaman[2019] HKCA 50 at [11].  As there is no viable ground of appeal, the appeal ought to be dismissed on this basis alone.

15.  In any event, the applicant’s general and bare assertions on his fear if refouled to his home country do not constitute valid grounds of appeal. As repeatedly emphasised by the Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Re Md Shohel Sheak[2018] HKCA 714 at [13]; and Re Limbu Birkhaman[2019] HKCA 50 at [11].

16.  For the above reasons, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.

The applicant acting in person