Re Imperial Sheryii Barriga

CACV 226/2020

[2021] HKCA 111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 226 OF 2020

(ON APPEAL FROM HCAL 1564 OF 2018)

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Before:  Hon Au JA and G Lam J in Court

Date of Hearing:  19 January 2021

Date of Judgment:  27 January 2021

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.This is the appeal by the applicant against the decision of Campbell-Moffat J (“the Judge”) set out in the Form CALL-1 dated 23 June 2020 refusing her leave to apply for judicial review (“the Judge’s Decision”) [2020] HKCFI 1330.

2.The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 26 July 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 17 January 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.By a letter dated 30 June 2020, the applicant gave consent to the appeal being heard by a two-member court.

A.  Background

4.The applicant is a national of the Philippines.  She entered Hong Kong as a domestic helper and was permitted to stay until 18 July 2014.  She did not leave when her visa expired and surrendered herself to the Immigration Department on 12 November 2015.  She lodged a non-refoulement claim on 17 November 2015.

5.The details of the applicant’s claim and her personal background were set out in paragraph 8 of the Director’s Decision, and paragraphs 7 - 38 of the Board’s Decision.

6.The applicant claimed that she would be harmed or killed by a rich man who was a murderer.  The applicant claimed to be an eye witness of a murder that happened in 2009.  She saw the murderer, Larry, shoot a man to death on the street.  She claimed that Larry threatened her not to report to the police or she would be killed.  She was frightened and went to another village to avoid the threats. However, the victim’s family was also looking for her and threatened to kill her if she did not tell the truth.  She also claimed that her loan shark threatened her for repayment of the loan.  Out of fear, she fled to Hong Kong for protection. 

B.  The Director’s Decision and the Board’s Decision

7.The Director assessed the BOR3 risk[1], the persecution risk[2], the torture risk[3], and the BOR2 risk[4] in the Director’s Decision.  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.The applicant appealed the Director’s Decision to the Board.  A hearing for the appeal was held on 11 May 2018, during which the applicant answered questions from the Board.  Having considered her oral evidence and the materials before it, the Board found that the key aspects of the applicant’s claim were implausible and refused to accept her as a witness of the truth (paragraphs 39 - 49 of the Board’s Decision).  As a result, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed her appeal.

C.  The Judge’s Decision

9.The applicant filed a Form 86 on 7 August 2018 seeking leave to apply for judicial review against the Board’s Decision.  In both her Form 86 and supporting affirmation, she simply stated that she disagreed with the Board’s Decision without advancing any grounds of review.  She also did not request an oral hearing.

10.After considering the available documents, the Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  She set out the following reasons in paragraphs 9 - 12 of the Judge’s Decision:

“Leave to apply for judicial review

9. Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. This is an application to apply for leave to judicially review the decision of the Adjudicator. The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with her application in order to obtain leave to judicially review them.

Grounds of review

10. There were no grounds of review. The applicant seeks a re-hearing of her appeal. She has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of her intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11. Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state her case and enquired into that case appropriately. She explained her reasoning. It is clear the applicant was not credible. There is no criticism of her determination, which was open to her on the facts and eminently reasonable.

12.  In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave. I therefore refuse leave for judicial review.”

D.  Grounds for appeal

11.The applicant filed the Notice of Appeal on 30 June 2020 to appeal the Judge’s Decision.  Her grounds of appeal are that: (a) the Director failed to consider the presence of state acquiescence; (b) the Director, the Board and the Judge failed to take such argument into account; (c) the Board failed to make sufficient inquiries before finalizing its decision; (d) the Board failed to give sufficient chance to the applicant to arrange relevant evidence; and (e) the Director had pre-conceived conclusion against the applicant.

12.Pursuant to Master Tsui’s directions dated 3 November 2020, the applicant filed her skeleton submissions on 30 November 2020.  In that, she quoted passages from ST v Director of Immigration[5] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  She further submitted that “high standards of fairness” applied to the determination of a non-refoulement claim and that the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  Lastly, she referred to section 37ZT of the Immigration Ordinance (Cap 115) which is about the late filing of notice of appeal to the Board.  However, she did not explain and elaborate how the aforesaid cases and statutory provision were related to or would assist her case.

13.At the hearing, the applicant confirmed that she had nothing further to add to what had already been set out in the Notice of Appeal and the written submissions.

E.  Discussion

14.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

15.First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

16.Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

17.Third, 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 the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

18.In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

19.Bearing these principles in mind, we are of the view that this appeal has no merit at all.

20.First, all the grounds stated in the Notice of Appeal and the written submissions are directed at the Director’s and Board’s Decisions, but do not identify with particularities any errors in the Judge’s Decision.  These are not viable grounds of appeal.  On this basis alone, the appeal should be dismissed.

21.Second, all these grounds were not advanced before the Judge.  As this Court has repeatedly said, in an appeal of this nature, new arguments directed against the Board which have not been canvassed at the Court of First Instance would not generally be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; Re Sudimah [2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O [2019] HKCA 1031 at [13(3)].

22.Finally and in any event, we have reviewed both the Board’s Decision and the Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Judge’s Decision.

F.  Disposition

23.For the reasons given above, we dismiss the appeal.

The applicant acting in person