Re Paglingayen Rosalyn Ringor and Another

CACV 316/2019

[2019] HKCA 1441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 316 OF 2019

(ON APPEAL FROM HCAL 870/2017)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 28 June 2019 refusing leave to the applicants to apply for judicial review.  The intended judicial review was against the decisions of the Director of Immigration (“the Director”) dated 12 May 2016 and 2 November 2016, as well as the decision of the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 13 October 2017.  The Director rejected the applicants’ claim for non-refoulement protection in Hong Kong and the Board upheld the said decision of the Director.

2.Due to the non-compliance with an unless order in terms of lodging skeleton submissions, the hearing date for this appeal (originally listed for 25 November 2019) was vacated and this appeal is processed on paper based on the materials already lodged.

3.This is our judgment.

Background

4.The 1^st applicant is a national of the Philippines.  She had been working in Hong Kong as a domestic helper since 2008.  She last arrived in Hong Kong on 24 April 2014, and was permitted to remain as a domestic helper until 24 December 2014.  Her permission to remain was later extended to 27 April 2016, or two weeks after the termination of her employment, whichever was the earlier.  Her employment contract was terminated early on 17 April 2015.  She did not depart upon the expiry of her permission to remain, and overstayed illegally.  She surrendered to the Immigration Department on 14 May 2015, and lodged her claim for non-refoulement protection on 18 September 2015.

5.The 2^nd applicant is the daughter of the 1^st applicant.  She was born in Hong Kong on 1 October 2015.  The 1^st applicant lodged a non-refoulement claim on her behalf on 9 December 2015.

6.The applicants’ claim was based on the fear that, if refouled, they would be harmed or even killed by the 1^st applicant’s husband because the 1^st applicant had an extramarital affair with another man and gave birth to the 2^nd applicant as a result.  The background facts of this case were summarized by the Judge in [2] – [4] of the Form CALL-1 ([2019] HKCFI 1501).  

7.By a notice of decision dated 12 May 2016[1], the Director assessed the applicants’ claim based on the BOR 3 risk[2], the persecution risk[3], and the torture risk[4], and determined the claim against the applicants.

8.By two notices of decision both dated 2 November 2016¹ (one was addressed to the 1^st applicant and the other to the 2^nd applicant), the Director further assessed their claim based on the BOR 2 risk[5].  Again, the Director decided against the applicants’ claim in that regard.

9.The applicants lodged an appeal/petition to the Board against the Director’s decisions.  An oral hearing was held on 15 August 2017.  The Board considered that, given the brevity and minor nature of the violence perpetrated by the 1^st applicant’s husband, it would be unlikely that the applicants would face any imminent threat from him if refouled[6].  It also found that the ill-treatments sustained by the 1^st applicant did not meet the minimum level of severity[7].  In light of the relevant country of origin information, the Board found state protection was reasonably available[8].  Internal relocation was also considered to be a viable option[9].  It was concluded that there were no substantial grounds for believing that the applicants would face a real risk of ill-treatment by the 1^st applicant’s husband if they were to return to the Philippines.  By a decision given on 13 October 2017¹, the Board dismissed the applicants’ appeal.

The Judge’s decision

10.On 13 November 2017, the 1^st applicant filed a Form 86 seeking leave from the court to apply for judicial review.  As mentioned earlier, the intended judicial review was against the decisions of both the Director and the Board.  However, no grounds for seeking relief were put forth in either the Form 86 or the affirmation in support of the leave application.

11.Since the applicants did not request any oral hearing, the Judge decided to deal with the leave application on the papers.

12.As mentioned earlier, having considered the materials placed before him, the Judge refused to grant leave to apply for judicial review.  His reasons in refusing leave were set out in [10] – [15] of the Form CALL-1 as follows:

“ 10.  On 13 November 2017 A1 filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but neither in it nor in her supporting affirmation did they put forward any grounds for their intended challenge.

11.  As A1 did not request for any hearing for her application, accordingly no hearing was held, and up to now no ground has been put forward by her for the intended challenge, nor did she make any complaint of any error or procedural unfairness in either of the decision of the Director or the Board, and in her supporting affirmation she merely exhibited copies of the previous decisions and the appeal hearing bundle. Given the fact that A1 had in the past always included her daughter A2 in her claim and as she is now unrepresented, I shall assume that it is also her intention to include A2 in her present application and accordingly I have included A2 in these proceedings.

12.  As has been repeatedly emphasized by the Court of Appeal, 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 error of law or procedural unfairness or irrationality being 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.

13.  Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of the Philippines, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  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 applicants’ claim.

15.  For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their leave application.”

The appeal

13.The applicants filed a notice of appeal on 8 July 2019.  The applicants stated therein that the judgment was unreasonable.

14.In the Appeal Bundle, the applicant inserted a 1-page document entitled “Supplemental Notice of Appeal”.  This document was signed by the 1^st applicant.  In the document, the 1^st applicant reiterated her fear based on her husband’s threats to kill her and her daughter.  She stated that she wanted to stay in Hong Kong because she and her daughter would be safe here.  She also alluded to the fear that her daughter would be subject to discrimination if returned to the Philippines.

15.As mentioned earlier, notwithstanding that they were directed to do so, the applicants did not lodge any skeleton submissions in support of this appeal.

General principles

16.Before we address the merits of this appeal, we would highlight the general propositions that this Court has adopted in determining an appeal for non-refoulement cases.  

(1)  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 scrutinizing 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 COI 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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  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.

(3)  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, the appeal should be dismissed.  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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

17.As this Court (differently constituted) held in Re Moshsin Ali [2018] HKCA 549, absent exceptional circumstances an applicant could no longer seek judicial review against the decision of the Director once the appeal to that decision had been pursued. There is no exceptional circumstance in the present case. Accordingly, the applicants’ intended judicial review against the decisions of the Director is doomed to failure. 

18.As regards the decision of the Board, the Board’s finding was that they would not face a genuine and substantial risk of being subjected to ill-treatment if refouled.  State protection was found to be available and internal relocation was considered a viable option.  As rightly pointed out by the Judge in [12] of the Form CALL-1, assessments of risk, availability of state protection, and viability of internal relocation are all within the province of the Board.  The court will not interfere with the findings of the Board unless they are reversible on the public law grounds. 

19.In the leave application, the applicants did not put forth any public law grounds to reverse the Board’s findings.  The Judge having considered the materials with rigorous examination and anxious scrutiny could not find any such ground either. 

20.There is nothing in the applicants’ documents constituting a viable ground that could reverse the decision of the judge.  In our view, the judge’s observations are correct.  We agree that leave to apply for judicial review should be refused.

21.For these reasons, we dismiss the appeal.

The 1^st and 2^nd applicants acting in person