Re Panergalin Celso Artipicio

CACV 168/2019

[2019] HKCA 1146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 168 OF 2019

(ON APPEAL FROM HCAL 397 OF 2018)

_______________

_______________

_________________

J U D G M E N T

_________________

Hon Wong J (giving the judgment of the court):

The Appeal

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 29 March 2019 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office (“the Board”) dated 7 March 2018 dismissing the applicant’s appeal against the two decisions of the Director of Immigration (“the Director”) dated 6 February 2015 and 12 May 2017 respectively rejecting his non-refoulement claim.

The applicant’s non-refoulement claim

2.The applicant is a Filipino national, 38 years of age.  He entered Hong Kong on 8 May 2011 with permission to stay as a visitor for 14 days.  He did not leave and had overstayed since 23 May 2011 until his arrest on 12 June 2012.  Thereafter, he was referred to the Immigration Department for further investigation and then he raised a non-refoulement claim.

3.The applicant’s background and the details of his claim were set out in full in paragraphs 5 ‑ 28 of the Director’s Notice of Decision dated 6 February 2015 and paragraphs 8 ‑ 14 of the Board’s decision dated 7 March 2018, and were summarized in paragraphs 1 ‑ 5 by the Judge in the Form CALL-1 dated 29 March 2019.

4.Briefly stated, the applicant’s claim was based on his fear that, if he were to return to the Philippines, he would be killed by an unknown murderer because he had witnessed the murderer killing the ex‑chief of his home village one day in November 2010.

The decisions of the Director / the Board

5.The applicant’s claim was assessed under the Unified Screening Mechanism (“USM”).  Having considered the torture risk[1], BOR 3 risk[2], and persecution risk[3], by a Notice of Decision dated 6 February 2015, the Director rejected his claim.  Subsequently, the applicant was invited to provide  additional facts if any which he considered to be relevant to his non-refoulement claim on all applicable grounds including that related to the BOR 2 risk[4].  The applicant did not provide any further information.  In the circumstances, by a Notice of Further Decision dated 12 May 2017, the Director informed the applicant that the decision dated 6 February 2015 would not be affected, and that in the absence of additional information it was considered that he had failed to establish the right under BOR 2.  The applicant appealed to the Board and a hearing was held on 30 October 2017.  By its decision dated 7 March 2018, the Board dismissed the appeal and affirmed the Director’s decisions.

The decision of the Judge

6.The applicant filed a Form 86 together with a supporting affirmation on 12 March 2018 seeking leave to judicially review the Board’s decision.  The grounds he put forward were:

(1)  The Board’s decision was tainted with procedural impropriety and unfairness in that:

(a)      the Board failed to carry out sufficient research and inquiry into the relevant up-to-date Country of Origin Information (“COI”) and failed to have regard to relevant and up-to-date COI in consideration of his claim;[5]

(b)     the Board failed to call for psychological and psychiatric evaluation and report on his mental conditions;[6]

(c)      the Board applied the incorrect standard of proof in reaching the decision;[7] and

(d)     there was a lack of or insufficient legal representation from the Duty Lawyer Service;[8] and

(2)  The Board’s decision was irrational in that:

(a)      it failed to take into account or put proper weight on the relevant COI, and it cherry-picked and put weight on irrelevant and out-dated COI;[9]

(b)     it failed to evaluate and make finding of facts as to whether there existed a consistent pattern of gross and mass violation of human rights in the Philippines[10];

(c)      it failed to analyze and assess whether state protection existed in the Philippines and misdirected itself as to the extended meaning of state protection;[11] and

(d)     it took into account and put weight on irrelevant matters, or based its decision on incorrect or inaccurate facts.[12]

7.At the applicant’s request, an oral hearing was set down for 15 January 2019 to hear his leave application.  The Judge, having heard the applicant in Court and having considered the relevant documents, decided that there was no prospect of success in the applicant’s intended judicial review and refused to grant him leave to apply for judicial review.  The Judge set out his reasons in paragraphs 12 ‑ 18 of the Form CALL-1 dated 29 March 2019[13]:

“12. These are however all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and I do not find any basis or merit in any of them.

13. The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

14. Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant as they had earlier all been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

15. As has been repeatedly emphasized by the Court of Appeal, evaluation of risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation 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 Re Litoun Mounsy [2018] HKCA 537.

16. In the present case, the Board rejected the applicant’s claim based on its adverse finding on the applicant’s credibility, and having made rigorous examination and anxious scrutiny of the materials available before me, I am unable to find any reasonably arguable basis to challenge the findings of the Board.

17. Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, with which the Board agreed when it confirmed the Director’s decision, there is simply no justification to afford the applicant with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

18.  In the premises I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds of appeal

8.The applicant filed a Notice of Appeal dated 8 April 2019 to appeal the Judge’s decision.  However, in the Notice he did not put forward any grounds of appeal.  He only stated that he would like to review the Board’s decision and the Judge’s decision because they disregarded his dangerous situation.

9.In support of the appeal, the applicant filed a skeleton argument which is dated 4 July 2019.  In the document, the applicant essentially reiterated his claim that his life would be in danger if he were to return to the Philippines. He claimed that the Board had failed to consider the possibility of his extraordinary circumstances and failed to assess fairly to identify legal error or procedural unfairness.  He also stated the followings as ground of appeal:

(1)  The Board erred in not finding his evidence in relation to the murder alleged by him credible; and

(2)  In relation to the finding that relocation is possible for him, he said relocation would deprive him the way to live like a normal human being as he would have to live like a fugitive.

10.He also referred to some human rights reports published by Amnesty International and Human Rights Watch, and submitted that there were unlawful killings by police and armed individuals in the Philippines.

Discussion

11.We heard the appeal on 14 October 2019.  At the hearing, the applicant confirmed that everything he wished to present to us has been included in the papers and he has nothing to add.

12.As the Judge correctly pointed out, this Court has emphasized in numerous cases that judicial review does not operate as a rehearing of an applicant’s non-refoulement claim.  Evaluation of the claim and evidence and assessment of its merits is a matter for the Director and the Board, who are the primary decision makers.  The Court in a judicial review exercises a supervisory role and its focus is on the legality and rationality of the decisions challenged and the propriety and fairness of the process by which the decisions were made.  It does not provide a further avenue of appeal.  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.  The court will not interfere with the findings of the Board unless they are reversible on public law grounds.

13.An appeal against the refusal of leave to judicial review by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and his decision would not be reversed unless the applicant 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.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.[14]

14.The Judge noted that the Board had made an adverse finding on the credibility of the applicant and indicated that after rigorous examination and anxious scrutiny of the materials before him he was not

able to find any reasonably arguable basis to challenge that finding.[15] We cannot discern any error in the consideration and decision of the Judge.

15.Relocation was not a matter raised by the applicant in his application for leave to apply for judicial review.  In any case, the Judge noted that it had been considered by the Director and the Board and both found that relocation is possible. Obviously the Judge did not think this finding should be disturbed.[16]  Having considered what the applicant said in this appeal, we do not see any merit in this matter.

16.We have considered the Judge’s decision and the reasons he gave in the Form CALL-1.  We agree with the Judge’s observations that the applicant’s case is not reasonably arguable, there is no realistic prospect of success and leave to apply for judicial review should be refused.

Disposition

17.For the reasons we have given above, we conclude that there is no merit in the appeal.  Accordingly, we dismiss the appeal.

The applicant, unrepresented, acted 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 torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] 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.

[4] This refers to the risk of violation of the right of life under article 2 of the Hong Kong Bill of Rights Ordinance.

[5] Ground 1 in the applicant’s affirmation.

[6] Ground 6 in the applicant’s affirmation.

[7] Ground 7 in the applicant’s affirmation.

[8] Ground 8 in the applicant’s affirmation.

[9] Ground 2 in the applicant’s affirmation.

[10] Ground 3 in the applicant’s affirmation.

[11] Ground 4 in the applicant’s affirmation.

[12] Ground 5 in the applicant’s affirmation.

[13] [2019] HKCFI 196.

[14] Re: Salwant Singh, CACV 164/2019, paragraph 14(3).

[15] Paragraph 16 in the Judge’s Observation for the Applicant in the form CALL-1, see paragraph 7 above.

[16] Paragraph 17 in the Judge’s Observation for the Applicant in the form CALL-1, see paragraph 7 above.