Fernandez Lonilyn Mabasa v. Torture Claims Appeal Board

CACV 436/2020

[2021] HKCA 280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 436 OF 2020

(ON APPEAL FROM HCAL NO 540 OF 2018)

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Before: Hon Kwan VP, Cheung JA and Au JA in Court

Date of Written Submission: 10 December 2020

Date of Judgment: 12 March 2021

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J U D G M E N T

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

1.The applicant lodged a Notice of Appeal on 4 September 2020 against the decision of Deputy High Court Judge Bruno Chan on 17 August 2020[1]. By his decision, the judge refused to grant leave to the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim.

2.The applicant is a national of the Philippines.  She is 60 years old.  She last arrived in Hong Kong on 14 December 2005 as a visitor. She subsequently overstayed and was arrested by the police on 14 September 2014.  She lodged a non-refoulement claim on 15 September 2014 on the basis that she would be harmed or killed by a wealthy and influential family in her home town for political reasons.

3.The applicant consented to the disposal of this appeal on paper by the Court of Appeal.  She lodged her written submissions on 10 December 2020 pursuant to the directions of the Registrar of Civil Appeals.

The Director’s decision

4.By a Notice of Decision dated 14 February 2017, the Director of Immigration (“the Director”) rejected the applicant’s non‑refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. 

5.Taking into account the absence of previous injury as well as the nature and frequency of past ill-treatment, the Director held that the applicant failed to establish that she would face a real and substantial risk as alleged upon her return to Philippines.  The Director further considered that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  

The Board’s decision

6.The applicant appealed to the Board against the Director’s decision. The Board conducted an oral hearing on 17 November 2017.  The Board found that the applicant is an entirely untruthful witness and there is no evidence to support her assertions of threats and harassment.  Thus, the Board decided that the applicant is not entitled to non‑refoulement protection and rejected the appeal on 9 February 2018. 

The intended judicial review

7.The applicant filed a Form 86 and an affirmation on 3 April 2018 to seek leave to apply for judicial review against the decision of the Board. She put forward the following grounds for her intended challenge:

(1)  she was not provided with an interpreter during her oral hearing before the Board, she had to give evidence in English which is not her mother tongue and was thereby prejudiced in the opportunity to explain her claim fully to the Board;

(2)  the adjudicator failed to understand properly the political abuses by those in power in the Philippines or to take into account its lack of human rights and zero tolerance for those who oppose the government when considering the applicant’s claim;

(3)  the adjudicator failed to appreciate the difficulties which she had as a foreign domestic helper with language problem in Hong Kong to seek help or advice for non-refoulement protection from the relevant authorities when considering the credibility of her claim; and

(4)  the adjudicator failed to take into account the impact on the applicant of threats made on her brother’s life in the consideration of her claim.

The judge’s decision

8.Ground (1) was rejected by the judge as it was the applicant’s own decision not to wait for the interpreter at the appeal hearing and there is nothing amiss arising from the appeal process before the Board being conducted without the assistance of an interpreter. 

9.The judge found that Ground (2) is not relevant to her claim and it is not reasonably arguable as it is not supported by any particulars or elaborations. 

10.Ground (3) failed as the Board was entitled to take into account the fact that she did not seek non-refoulement protection during the 9 years’ stay in Hong Kong but only lodged her claim after her arrest in 2014.  The Board considered this together with other evidence in assessing the applicant’s credibility.  

11.The judge found that Ground (4) is without merit as the applicant’s allegation was not supported by any reliable evidence and her brother died of pneumonia as shown in the death certificate which is contrary to her assertion. 

12.As the applicant failed to show she has any prospect of success in her intended judicial review, the judge dismissed the leave application on 17 August 2020.

Grounds of appeal

13.The applicant’s grounds of appeal are attached to her Notice of Appeal which may be summarized as follows:

(1)  there are political killings in the Philippines against people who advocate against and speak out on irregularities and corruption;

(2)  people who threatened the applicant’s family are free on the street and can inflict danger to the applicant; and

(3)  the applicant will continue her advocacy of responsible governance and support a leader that is voted by the people and who will be against the family clan that rules her home town.

14.In her written submissions, she further contended that her brother died while trying to collect evidence to send her to support her case and she is afraid of political persecution in her country so she came to Hong Kong where she has spent more than half of her life.

Legal Principles

15.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

16.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 Country of Origin Information 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.

17.In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

18.The applicant’s grounds of appeal are not viable to reverse the judge's decision.  In particular, she failed to point out and demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in his decision. 

19.Furthermore, as pointed out by the judge and the Board, the applicant’s brother died from pneumonia as shown in the death certificate and there is nothing to show that it has anything to do with the applicant’s claim and her allegations.  The applicant also failed to provide any evidence to refute the Board’s findings against her.

20.For the above reasons, there is no merit in the appeal and no reasonable prospect of success in the intended application for judicial review.  We therefore dismiss the appeal.

The Applicant (Appellant), acting in person