Re Ling Ayo Jessie Fernando

CACV 28/2020

[2021] HKCA 198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 28 OF 2020

(ON APPEAL FROM HCAL NO. 1604 OF 2018)

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Before:  Hon Yeung VP and B Chu J in Court

Date of Hearing:  22 February 2021

Date of Judgment:  1 March 2021

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J U D G M E N T

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

Introduction

1.This is an appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) made on 14 January 2020 in HCAL 1604/2018 refusing leave to the applicant to apply for judicial review against the 2 decisions of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 23 January 2017 and 3 August 2018 in which the Board confirmed the decisions of the Director of Immigration (“the Director”) dated 8 April 2015 and 6 June 2017.

Background

2.The applicant is a national of the Philippines.  He came to Hong Kong on 14 October 2012 as a visitor and was permitted to stay for 14 days. He overstayed.  On 20 October 2013, he was arrested for being an illegal immigrant and was then referred to the Immigration Department for investigation.  On 3 March 2014, he lodged a non-refoulement claim by way of written representation on the basis that if refouled, he would be harmed or killed by the gambling collectors in his locality because he believed that the gambling collectors had mistaken that he had reported against their illegal gambling to police.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 164. 

3.By the Notice of Decision dated 8 April 2015 and Notice of Further Decision dated 6 June 2017, the Director decided against the applicant’s claim.  The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

4.The applicant appealed to the Board.  An oral hearing was held on 1 June 2016 and by its decision dated 23 January 2017, the Board rejected his appeal and confirmed the Director’s Decision.  The Board then received another appeal against the Director’s Further Decision on BOR 2 risk.  Having found that the applicant had added nothing to support his claim on BOR 2 risk, the Board decided not to hold an oral hearing and dealt with the appeal on the papers.  By another Decision dated 3 August 2018, the Board rejected the applicant’s appeal against the Director’s Further Decision. 

5.The Board found that on the account of the applicant, neither he nor his family had sustained any form of physical harm and there was only one incident of verbal threat by the gambling collectors. There was no evidence to support the suggestion that the gambling collectors were part of a syndicate or connected with the police and government officials. The Board did not find that the applicant’s past experience had attained the minimum level of severity or amounted to torture that would qualify him to claim under any of the applicable grounds.  The Board further found that in any event, internal relocation is a reasonable and viable.  For the aforesaid reasons, the appeal was dismissed on all applicable grounds.

The Judge’s decision

6.On 10 August 2018, the applicant filed his Form 86 to apply for leave for judicial review against the Board’s decision.  The applicant had mistakenly filled in his own name as the respondent and with the leave of the court, he amended the respondent as the Board.  The applicant did not provide any grounds of appeal in Form 86 nor in his supporting affirmation.

7.The Judge heard the application on 10 July 2019 and by the CALL-1 Form of 14 January 2020, the application was refused.  The Judge, after summarizing the facts and background of the case and giving due consideration of the decisions of the Director and the Board, gave the following reasons in refusing leave at [20] – [24] of the CALL-1 Form:

“20.  The applicant appeared before me. He confirmed that he was treated fairly when he appeared before the immigration officer and the Board. He could read the Director’s Decisions and the Board’s Decisions himself.

21.  Since the applicant had not given further information in support of his appeal against the Director’s Further Decision on BOR2 risk, the Board was correct to come to its decision that no oral hearing would be necessary and assess the applicant’s appeal on the paper.

22.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review.

23.  There is nothing to show that the Board has committed any error in its application of the laws to the case or in coming to its conclusion on the facts of the case.

24.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”

The Appeal

8.On 20 January 2020, the applicant filed his Notice of Appeal.  He set out the following as the grounds of appeal:

“On 14 January 2020 the Judge K.W. Lung ordered that my leave to apply for judicial review be refused but he failed to show any good reason. On my oral hearing he did not listen my claim on my country but full of his order he discride (sic) only Director decision. He did not consider any point raised from my side.”

9.In compliance with the order made by Registrar of Civil Appeals, the applicant lodged his written submissions on 6 October 2020.  In his written submissions, he reiterated that it was not safe for him to return to his home country as he might be killed by his enemies and he urged the court to grant him leave to apply for judicial review.

10.We heard the appeal on 22 February 2021.

General Principles

11.Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]:

(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

12.The applicant did not in his Notice of Appeal or his written submissions provide any valid grounds of appeal and did not identify any specific errors in the Judge’s decision or any other arguably grounds for reversing the Judge’s decision.  This appeal is bound to fail.

13.His allegations that the Judge refused to listen to his case is ill-founded.  As pointed out by the Judge in the CALL-1 Form, the applicant did not request for an oral hearing initially and he did not provide any grounds of review.  The Judge, therefore, pursuant to Order 1B, rule 1(2)(c) of the Rules of the High Court (Cap. 4A), invited the applicant to appear in court in order to explain the purpose of judicial review to him.  As clearly shown in the CALL-1 Form, the Judge had duly set out the applicant’s case and the decisions made by the Director and the Board as well as the reasons for his refusal of the application.  We are also satisfied that the Judge had duly considered the Board’s decisions carefully and we found no errors of law or procedural unfairness or irregularities in the Judge’s decision. The applicant’s complaints are devoid of merit and cannot stand.

14.Having read the decisions of the Board, we take the view that the Board had carefully considered the applicant’s evidence and found that he did not suffer any physical/ mental harm other than verbal threat even on the account of his story and as such, the Board had rightly dismissed his case on all applicable grounds.  In our judgment, the Board’s decisions were eminently reasonable and justified and we see no basis for intervention.  We agree with the Judge’s conclusion that the applicant’s case is without merit and his application should be dismissed.

15.For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.

The applicant, unrepresented, acted in person.