Case Detail

CACV 241/2023, [2023] HKCA 1258

On Appeal From [2023] HKCFI 1877

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 241 OF 2023

(ON APPEAL FROM HCAL NO 983 OF 2019)

________________________

BETWEEN
	DIGMA ARLENE BAYING	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

_____________________

Before:

Hon Au and Chow JJA in Court

Date of Written Submissions:	25 October 2023
Date of Judgment:	10 November 2023

____________________

JUDGMENT

____________________

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

1. On 27 July 2023, Deputy High Court Judge K W Lung made an order refusing to grant the Applicant leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 4 April 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration dated 21 March 2018 rejecting her non-refoulement claim.

2. On 10 October 2023, this Court gave its judgment (“the CA Judgment”) dismissing the Applicant’s appeal against the Judge’s order of 27 July 2023. The basic facts of this case and the Court’s reasons for dismissing the Applicant’s appeal have been set out in the CA Judgment and will not be repeated here.

3. By Notice of Motion dated 18 October 2023, the Applicant applies for leave to appeal the CA Judgment to the Court of Final Appeal. In the Notice of Motion, the Applicant repeats her allegation that she will be in grave danger if she returns to the Philippines, and says that relocation is out of the question for her.

4. Her written submissions dated 25 October 2023 lodged in support of the present application are materially the same as her previous written submissions dated 13 August 2023 lodged in support of her appeal.

5. Pursuant to paragraph 3 of Practice Direction 2.1, we determine the present application for leave to appeal on paper without an oral hearing.

6. 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.

7. 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. The Applicant has not identified any error in the CA Judgment, or raised any viable ground of appeal against the CA Judgment. We are satisfied that the intended appeal has no merits and no reasonable prospect of success.

8. 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.

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

(Thomas Au)
Justice of Appeal

(Anderson Chow)
Justice of Appeal

The Applicant, acting in person

CACV 241/2023, [2023] HKCA 1096

On Appeal From [2023] HKCFI 1877

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 241 OF 2023

(ON APPEAL FROM HCAL NO 983 OF 2019)

________________________

BETWEEN
	DIGMA ARLENE BAYING	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD/	Putative
	NON-REFOULEMENT CLAIMS	Respondent
	PETITION OFFICE
	and
	DIRECTOR OF IMMIGRATION	Putative
		Interested Party

_____________________

Before:

Hon Au and Chow JJA in Court

Date of Written Submissions:	13 August 2023
Date of Judgment:	10 October 2023

________________

J U D G M E N T

________________

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

1. On 1 August 2023, the Applicant filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 27 July 2023 (“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 4 April 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 21 March 2018 rejecting her non-refoulement claim.

BACKGROUND

2. The Applicant is a national of the Philippines. She last entered Hong Kong as a visitor on 16 May 2016, and did not depart after the expiry of her limit of stay. On 13 June 2016, she surrendered herself to the Immigration Department. On 4 August 2016, she lodged a non-refoulement claim on the basis that if refouled, she would be harmed or killed by her husband (Marlo Digma). Details of the Applicant’s claim were summarised by the Judge at §§4-5 of the CALL-1 Form.

3. By a Notice of Decision dated 21 March 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] (“the Director’s Decision”).

4. The Applicant appealed the Director’s decision to the Board. On 4 April 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, as follows:

“Having considered the applicant’s evidence given before the Director [8]-[17] and those before the Board [18]-[29], the Board found that the applicant’s evidence on her contact with Marlo since she left the Philippines contained significant discrepancies; that the applicant’s explanation on her unwillingness to receive medical treatments or to seek police protection was unpersuasive; that the lack of medical evidence and police records undermined her credibility; that her alleged continuous threats from Marlo was without merits; and that the country of origin information indicated that state protection to women who were victims of domestic violence was available [33]-[42].”

THE JUDGE’S DECISION

5. On 10 April 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 affirmation filed on the same date, she merely stated the following: “I just want to appeal because I’m not contented to the decision to my application”.

6. On 27 July 2023, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[15] The ground in paragraph 11, supra [being a reference to the Applicant’s affirmation of 10 April 2019] is not valid to challenge the Board’s Decision.
[16] 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.
[17] The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

THIS APPEAL

7. In the “Grounds of Appeal for Digma Arlene Baying” attached to her Notice of Appeal filed on 4 July 2023, the Applicant reiterates that she will be in grave danger if she returns to the Philippines, and she will be killed, harmed and/or tortured by her abusive husband. The Applicant says that she left the Philippines for 3 reasons: (i) to escape from her abusive husband, (ii) to give her family a better life, and (iii) to have a fresh start. She also explains why the Government and the police in the Philippines will not give her protection, and that internal relocation is out of the question.

8. In her written submissions dated 13 August 2023, the Applicant repeats what she said in the aforesaid grounds of appeal.

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 identify or show any error in the Judge’s decision of 27 July 2023, and has failed to raise any viable ground of appeal against the Order.

12. The Applicant’s appeal has no merits, and is dismissed.

(Thomas Au)
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 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.

DIGMA ARLENE BAYING v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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