CACV 160 /2024, [2024] HKCA 1096
On appeal from [2024] HKCFI 930
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 160 OF 2024
(ON APPEAL FROM HCAL NO 1307 OF 2019)
________________________
BETWEEN
| | Mallare Lauro Magbitang | Applicant |
| | and | |
| | Torture Claims Appeal Board / Non-refoulement Claims Petition Office | Putative Respondent |
| | and | |
| | Director of Immigration | Putative Interested Party |
________________________
| Before: | Hon Kwan VP and Au JA in Court |
| Date of Judgment: | 26 November 2024 |
________________________
J U D G M E N T
________________________
Hon Kwan VP (giving the Judgment of the Court):
1. On 11 April 2024, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 25 April 2024.
2. The applicant is a national of the Philippines. He last entered Hong Kong as a visitor on 9 July 2015 and subsequently overstayed. He surrendered to the Immigration Department on 14 October 2015 and lodged a non-refoulement claim on 13 March 2017. His claim was made on the basis that, if refouled, he would be harmed or killed by the people of the drug syndicate for his relationship with his late boyfriend.
The decision of the Director
3. By a Notice of Decision dated 30 October 2018, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].
4. In view of the absence of any past ill-treatment or direct threat from the people from the drug syndicate, the Director considered that there are no substantial grounds for believing that there will be any real and substantial risk of the applicant being harmed or killed by the claimed parties upon his return to the Philippines. The Director also found that the claimed fear, even if existed, was only localised in the applicant’s hometown and there is no reliable evidence to show that the people from the drug syndicate are looking for him in the Philippines and have any intention to kill him. The Director further assessed that state protection and internal relocation options are available to the applicant in the Philippines which further lower or negate any perceived risk.
The decision of the Board
5. The applicant attended the hearing of the appeal against the Director’s decision before the Board on 11 March 2019. Although the Board found that gay people may face harassment and the applicant may continue to experience some discrimination and some other undesirable official and societal harassment or rejection in the Philippines, the Board did not accept that the harassment rises to the level of a real risk of serious harm, torture, cruel, inhuman or degrading treatment or punishment or death if the applicant returns to the Philippines. The Board also did not accept that the applicant would face a real risk of harm, which enlivens non-refoulement protection obligations in his circumstances. The Board further found it would be reasonable for the applicant to relocate to other places in the Philippines and there is no evidence to suggest that state protection would be inadequate or withheld from the applicant. Thus, the Board dismissed the appeal on 7 May 2019.
The intended judicial review
6. The applicant filed a Form 86 and an affirmation on 15 May 2019 to seek leave to apply for judicial review against the decision of the Board. He did not put forward any ground for his intended challenge.
The judge’s decision
7. DHCJ Lung dealt with the leave application on paper as the applicant did not request for an oral hearing. The judge found there is no valid ground from the applicant to challenge the Board’s decision and there is no reason for the court to interfere with the Board’s decision. As the applicant did not have any realistic prospect of success in his proposed judicial review, the judge refused the leave application on 11 April 2024.
Grounds of appeal
8. The applicant stated as his grounds of appeal in the Notice of Appeal that he does not want to go home yet because his life is still in a dangerous situation.
9. In his written submissions, he reiterated the problems he faced in the Philippines. He submitted that the Board did not give him any chance to tell his problem, but the court did not find any problem with this so he wants to appeal.
10. The applicant has submitted a written consent for the appeal to be disposed of on paper without an oral hearing. Directions were given by the Registrar of Civil Appeals on 25 April 2024 requiring the applicant to lodge written submissions. The applicant has lodged written submissions as directed.
Legal principles
11. The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.
12. The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information materials and 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 errors of law or procedural unfairness or irrationality in the decision of the Board.
13. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.
Analysis and disposition
14. The applicant’s allegation that the Board did not give him any chance to tell his problem is not supported by evidence. In fact, as shown in §§58 to 87 of the Board’s decision, the applicant was given ample opportunities to talk about his problems at the hearing before the Board. The applicant does not have any evidence to refute the findings of the Board and he also failed to identify any error in the judge’s decision.
15. For the above reasons, the applicant’s grounds of appeal are devoid of merit. We therefore dismiss his appeal.
| (Susan Kwan) | (Thomas Au) |
| Vice President | Justice of Appeal |
The Applicant (Appellant), acting in person
[1] [2024] HKCFI 930
[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to 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).
[5] 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.