CACV 277/2023, [2024] HKCA 18
On Appeal From [2023] HKCFI 2259
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 277 OF 2023
(ON APPEAL FROM HCAL NO 1475 OF 2019)
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BETWEEN |
| | Oriao Jeania Picpican | Applicant |
| | and | |
| | Torture Claims Appeal Board/
Non-refoulement Claims Petition Office | Putative Respondent |
| | and | |
| | Director of Immigration | Putative Interested |
| | | Party |
_______________
| Before: | Hon Au JA and Ng J in Court |
| Date of Hearing: | 5 December 2023 |
| Date of Judgment: | 12 January 2024 |
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J U D G M E N T
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Hon Ng J (giving the Judgment of the Court):
1. This is an appeal by the Applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 4 September 2023, by which the Deputy Judge refused the Applicant’s application for leave to apply for judicial review (“the Leave Decision”) ([2023] HKCFI 2259).
2. The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 24 May 2019 (“the Board’s Decision”), dismissing the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 8 March 2018 rejecting the Applicant’s non-refoulement claim (“the Director’s Decision”).
3. We heard the appeal on 5 December 2023. After the hearing, we reserved our judgment to be handed down in writing. This is what we do now.
Background
4. The Applicant is a national of the Philippines. She last arrived in Hong Kong on 31 March 2015 and was permitted to remain for employment as domestic helper until 31 March 2017 or two weeks after termination of contract, whichever was earlier. Her employment contract was prematurely terminated on 13 September 2015 but she overstayed. She was later arrested by the police on 9 October 2015 for overstaying and was referred to the Immigration Department. She then raised a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her ex-boyfriend’s family who blamed her for breaking up with him which caused him to commit suicide. Factual details of the Applicant’s claim were concisely summarised by the Deputy Judge at [1] to [4] of the Leave Decision.
5. By the Director’s Decision, the Director rejected the Applicant’s non‑refoulement claim. The decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that her non‑refoulement claim was not substantiated.
6. The Applicant then appealed against the Director’s Decision to the Board on 23 March 2018. The Applicant attended a hearing on 20 March 2019 and was assisted by a qualified interpreter. In essence, the Board found that there were multiple inconsistencies in the Applicant’s evidence and doubted her credibility. The Board was not satisfied that the Applicant would face a real risk of harm of any kind upon refoulement. In any event, state protection and internal relocation would be available for her. Accordingly, the Board found that her non-refoulement claim failed on all applicable grounds and dismissed her appeal.
The Leave Decision
7. On 30 May 2019, the Applicant filed her Form 86 for leave to apply for judicial review against the Board’s Decision. In her Form 86, the Applicant did not state any ground of review. In her supporting affidavit, she only stated that she would like to reject and set aside the decision made by the Immigration Department since they had disregarded the danger and threats she would face in her country if refouled. As she did not request for an oral hearing, her application was considered by the Deputy Judge on paper.
8. By the Leave Decision, the Deputy Judge refused to grant leave to the Applicant to apply for judicial review. His reasons were set out at [9] to [14] of the Leave Decision:
“9. On 30 May 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 to which she just attached a copy of the Board’s decision 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.
10. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh[2018] HKCA 246; Re Daljit Singh[2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Nupur Mst v Director of Immigration[2018] HKCA 524.
11. In the Applicant’s case, the Board essentially rejected her claim on its adverse finding on her credibility for the detailed and thorough analysis and reasoning set out in paragraphs 18 – 47 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law 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 to challenge the finding of the Board.
12. Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, a decision also confirmed by the Board, 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.
14. 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.”
The Appeal
9. On 11 September 2023, the Applicant filed a Notice of Appeal in support of her appeal against the Leave Decision. In her Notice of Appeal, she stated:
“I am writing this grounds regarding my judicial review was dismissed by high court but I request to you to retest my case because still I have life threaten by my x boyfriend I need to explain properly in my oral hearing.”
10. The Applicant lodged her written submissions on 31 October 2023. In gist, she reiterated the basis of her non-refoulement claim and asserted that if refouled, her life would be at risk as the alleged suicide committed by her ex-boyfriend was complicated and that his family was still harming her family and their property. She further alleged that her claim was true and that she had pictures on her phone but all were disregarded. She then asserted that her enemies were rich people who had connection with the police and that they could harm her life.
11. We heard the appeal on 5 December 2023. A Tagalog interpreter was present to provide language assistance. At the hearing, the Applicant confirmed she had nothing to add.
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.
14. First, the Applicant’s submissions are all bare assertions without any evidence or document in support. Although she disagreed with the Leave Decision, nowhere in her Notice of Appeal or written submissions did the Applicant identify with particulars how the Deputy Judge had erred in reaching the Leave Decision. Her submissions are plainly not proper grounds of appeal. On this basis alone, her appeal must fail.
15. Further, general assertions of her fear if refouled do not constitute proper grounds of appeal: see Re Farrukh Zaib[2020] HKCA 408 at [28]. More importantly, as repeatedly emphasised by the Court of Appeal, it is well‑established that the assessment of evidence, Country of Origin Information 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, procedural unfairness or irrationality in the decision of the Board: Re Md Shohel Sheak[2018] HKCA 714 at [13] and Re Limbu Birkhaman[2019] HKCA 50 at [11].
16. The Deputy Judge, after rigorous examination and anxious scrutiny, could not find any error of law, procedural unfairness or any other reasonably arguable grounds to challenge the findings of the Board. We see no basis to interfere with the Leave Decision.
17. For the above reasons, the Applicant’s appeal has no merits and we dismiss the appeal.
(Thomas Au)
Justice of Appeal | (Peter Ng)
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 violation of the right to 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 and its 1967 Protocol.