Barroga Escolastica Tejero v. Torture Claims Appeal Board

CACV 193/2020

[2020] HKCA 1020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 193 OF 2020

(ON APPEAL FROM HCAL NO 1540 OF 2018)

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BETWEEN

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Before:  Hon Lam VP and G Lam J in Court

Date of Hearing:  9 December 2020

Date of Judgment:  15 December 2020

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J U D G M E N T

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Hon G Lam J (giving Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 8 June 2020 refusing leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 27 July 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 13 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of the Philippines. She last arrived in Hong Kong in October 2008 to work as a domestic helper and was employed as such until 12 December 2009 when her contract was terminated before its expiry.  Her conditions of stay permitted her to remain in Hong Kong until 2 weeks after termination of her contract.  She did not, however, depart from Hong Kong and has overstayed since 27 December 2009. 

3.On 6 July 2013 the applicant was arrested by the police for overstaying, for which she was convicted and sentenced to 12 weeks’ imprisonment.  Upon release she was transferred to the Immigration Department, and subsequently lodged a non-refoulement claim. 

4.The applicant’s claim was based on the fear that, if she returned to the Philippines, she would be harmed or even killed by her creditor Rogelio Marasigan, as she had stopped repaying her outstanding debt and as he was apparently connected to the New People’s Army.  The factual background was summarized by the Judge in [2]-[4] of the Form CALL-1 ([2020] HKCFI 1047).

5.By notices of decision dated 8 May 2015 and 13 July 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against the applicant.  The former covered BOR 3 risk,[1] persecution risk,[2] and torture risk,[3] and the latter covered BOR 2 risk.[4]

6.The applicant appealed to the Board against the Director’s decision of 8 May 2015.  An oral hearing was held on 16 August 2016, during which the applicant was interviewed by the Board. 

7.The Board found that there was no real risk of harm in the event of refoulement, because the applicant was never directly threatened in relation to her debt, her mother who received the threats had never been assaulted, and the matter involved a private loan.  The Board further considered that any risk of harm was of a localized nature and thus internal relocation was viable.  Accordingly, the Board dismissed the applicant’s appeal on 23 February 2017 in relation to persecution risk, BOR 3 risk, and torture risk.

8.Subsequently the applicant also appealed to the Board against the Director’s decision of 13 July 2017 on BOR 2 risk.  The Board decided that it was unnecessary to hold an oral hearing in relation to the applicant’s claim under BOR 2 risk, because there were no new materials or facts to consider, and there was nothing that seemed to warrant an oral hearing.  Based on its factual findings in its decision of 23 February 2017, the Board concluded that there was no BOR 2 risk in the event of refoulement, and dismissed the applicant’s appeal on 27 July 2018.

Decision of the court below

9.On 3 August 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision of 27 July 2018 and the Director’s decision of 8 May 2015.[5] In her affirmation in support of her Form 86, she raised the following relevant grounds for seeking relief, as set out at [12] of the Judge’s decision:

“ 12. On 3 August 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  that she was not provided with legal representation for her BOR 2 risk before the Director or for her appeal before the Board;

(2)  that she was not given language assistance in her appeal to the Board;

(3)  that it was not fair to reject her BOR 2 risk when she was not aware of the invitation letter for her to submit additional facts for BOR 2 risk;

(4)  that it was not fair to dismiss her appeal without any oral hearing before the Board; and

(5)  that the Board failed to elaborate on its findings as to her grounds of appeal in dismissing her appeal.”

10.Following a hearing on 10 December 2019 at which the applicant attended in person before the Judge, on 8 June 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [13]-[21] of the Form CALL-1 ([2020] HKCFI 1047) as follows:

“ 13.  For her complaint in Ground (1) of not being provided legal representation in her appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14,Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

14.  The Applicant already had the benefit of legal representation in presenting her case to the Director, and was able to testify and make representation in her appeal hearing before the Board and to answer questions put to her by the adjudicator without difficulty. In the premises I do not find anything amiss arising from the lack of legal representation in her appeal process, and I do not think this ground is reasonably arguable.

15.  As for her complaint under Ground (2) of not being provided with language assistance for translating documents in her appeal to the Board, it is clear that having worked and lived in Hong Kong for years that she would be able to read and speak English, while many of the documents such as her NCF was completed on her instructions to her legal representation from DLS, and that she was also assisted by an interpreter at her appeal hearing before the Board during which she never raised any issue with translation. In the absence of any particulars or specifics to demonstrate that the basis of her claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

16.  Regarding her complaint in Ground (3) that she was not aware of the Director’s written invitation for her to submit additional facts for her claim under BOR 2 risk, it is for her to prove that she in fact did not receive the letter for which she did not provide any details or documentary evidence, but even if that was the case, given the nature of her claim even on her own case that it clearly does not engage the BOR 2 risk, and that in her present proceedings now before me, she still did not adduce any additional facts which may be relevant to BOR 2 risk. As such I do not find any basis or merit in this ground of the Applicant.

17.  As for her complaint in Ground (4) of not being provided an oral hearing for her BOR 2 risk, as held by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277, there is no absolute entitlement to an oral hearing, as it is ultimately a question of fairness looking at the overall circumstances, and in the Applicant’s case, given the nature of her claimed fear of harm from her creditor over a monetary dispute which clearly does not engage BOR 2 risk, and in the absence of any additional facts from the Applicant despite the Director’s invitation, I do not find anything wrong with the Board’s exercise of discretion not to hold another oral hearing for the Applicant’s second appeal, and I do not find this ground reasonably arguable either.

18.  As regard her complaint under Ground (5) that the Board did not elaborate on her grounds of appeal, it is plainly factually incorrect as the Board clearly did in both its first decision ([35]-[40]) and second decision ([8]-[13]), and in the absence of any error of law in those decisions being clearly and properly identified by the Applicant, I do not find this ground arguable either.

19.  As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

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

21.  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.”

Appeal to this Court

11.On 16 June 2020, the applicant filed her Notice of Appeal against the Judge’s decision.  Her grounds of appeal were that the Judge did not exercise caution and diligence in dealing with her as a litigant in person, and that inadequate language assistance, especially the lack of translation of documents in the court and Board proceedings, was procedurally unfair.

12.On the same day that she filed her Notice of Appeal, the applicant agreed in writing that the appeal could be heard by 2 judges.

13.In her written submissions for this appeal, the applicant further elaborated on her argument on language assistance, ie that English is not her first language and that she is unable to understand legal jargon without legal assistance.  Thus, she argued, she was unable to fully understand her case in court or before the Board, which deprives her of the right to a proper appeal.  On that basis, the applicant says that the Judge failed to exercise diligent care toward her as a self-represented litigant who does not fully understand English.

14.The applicant also submitted that although the Director did not make an adverse finding as to her credibility, the Board has done so, and it was unfair for the Board to do so.

Legal principles

15.In approaching this appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(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 matters 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, 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 his decision 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 for reversing the judge’s decision, 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 for judicial review in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

16.As mentioned earlier, the applicant did not in her Notice of Appeal or her submissions provide any particulars in support of her arguments, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision. General assertions without particulars are not effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

17.The applicant graduated from the University of the North and Philippines in 1990.  She was provided with legal representation and language assistance in her claim before the Director.  An interpreter was provided at the Board hearing.  As the Board recorded in its first decision, at the hearing the applicant clarified certain matters raised in her Non-refoulement Claim Form and record of interview.

18.At the hearing before the Judge, a certified interpreter in the Tagalog language was present.

19.It is insufficient for the applicant to argue that inadequate language assistance resulted in procedural unfairness, without at least raising specific details as to where or how the Board or the Judge fell into error.  As the applicant has not raised such details, this argument is untenable.

20.As for the argument that the applicant does not understand legal jargon, and thus was unable to properly understand or prepare her case, this is attenuated by the fact that she was legally represented before the Director, and the Board’s decision did not turn on any issue relating to legal jargon or concept. 

21.As for the argument that it was unfair for the Board to make an adverse finding on the applicant’s credibility, it is to be noted that an appeal before the Board is by way of rehearing, and thus the Board need not adopt the Director’s findings.  Moreover, the applicant has wholly failed to specify how the Board’s finding on this point was unfair. 

22.In the present case, the Board rejected the applicant’s claim for non-refoulement protection mainly based on its finding that there was no real risk of harm to applicant if she were to return to the Philippines, and that any risk is localized, such that internal relocation is viable.  Such a finding is within the province of the Board, and the court will not interfere with such assessments unless they are reversible on grounds within the scope of judicial review. 

23.As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no grounds that point to any error by the Judge, the appeal should be dismissed.

24.Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is right to refuse leave. 

25.For these reasons, the appeal is dismissed.

The Applicant, unrepresented, acting in person