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CACV 626/2020
[2021] HKCA 772
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 626 OF 2020
(ON APPEAL FROM HCAL 2224/2018)
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| RE: |
RAMALES JULIO FIGUEROA |
Applicant |
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Before: Hon Barma JA and Lisa Wong J in Court
Date of Hearing: 24 May 2021
Date of Judgment: 4 June 2021
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J U D G M E N T
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Hon Barma JA (giving the Judgment of the Court):
1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 20 November 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 2 October 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 19 June 2017 rejecting the applicant’s non-refoulement claim.
Background
2.The applicant is a national of the Philippines. He entered Hong Kong on 23 June 2004 as a visitor and was permitted to remain until 7 July 2004. He overstayed and surrendered to the police on 13 May 2009. He lodged a torture claim on 15 May 2009. He was subsequently convicted of the offence of breach of condition of stay on 8 November 2013. The applicant lodged a claim for non-refoulement protection in September 2013.
3.The applicant’s claim was based on his perceived threat from some masked men he witnessed committing a murder. The details of the applicant’s claim have been summarised by the judge at [1] to [4] of the CALL-1 Form.
4.By a Notice of Decision dated 19 June 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2] and the persecution risk[3].
5.The applicant appealed to the Torture Claims Appeal Board. After a hearing on 23 August 2018, the Board dismissed the appeal on 2 October 2018 (“Board’s Decision”).
6.At [62] – [67] of the Board’s Decision, the Board found that the applicant’s claim that he witnessed a murder was plausible. However, there was insufficient evidence to suggest that he would be targeted by the perpetrators upon his return.
The judge’s decision
7.The applicant filed a Form 86 on 12 October 2018 which contained no ground for seeking relief.
8.In his affirmation in support of the leave application filed on 12 October 2018, the applicant advanced the following grounds for judicial review, as summarized by the judge at [9] of CALL-1 Form:
(1) procedural unfairness in failing to provide legal representation for his appeal to the Board;
(2) that the Director wrongly determined his claim and which the Board also failed to properly address this issue;
(3) that the Board’s decision was not read or translated to him so that he could have a better understanding of his case;
(4) that the Director and the Board wrongly exercised their case management power by putting too much weight on the COI which did not reflect the true situation in the Philippines;
(5) that the Director quoted various COI which supported his allegations regarding state protection but used them against his claim by claiming that the situation has improved in the Philippines without any explanation as to how the balancing exercise worked and what tests did the Director apply in concluding that the particular sections of COI outweigh the others;
(6) that the Director merely adopted a formula and biased approach in assessing his claim including using certain COI to both support his assertion of the overall corruption of the Philippines including the ineffectiveness of its police but at the same time to use the same COI to show that positive reforms have been on-going in respect of the police in the country;
(7) that the hearing bundle served on him for his appeal without reading or translating the documents to him of which he cannot read or understand.
9.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [10] to [19] of the CALL-1 Form:
“10. For his complaint under Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard 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 367, and Re Zafar Muazam [2018] HKCA 176.
11. The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.
12. As for his complaints under the other grounds, they appear to me just bare and vague assertions of the Applicant without any particulars or specifics or elaborations as to how they apply to his claim, while (4) to (6) are clearly not relevant to his case when he never sought assistance from the local police prior to his departure from the Philippines.
13. As for his remaining complaint under (7) of being served with the hearing bundle only shortly before his appeal hearing before the Board, and that the documents in the bundle which were all in English had never been read or translated to him that he would not even know what they were other than his own signature, I note that the Applicant has been living in Hong Kong since 2004 and should be able to read some English other than his own signature, and that his supporting affirmation in his present application now before me is in English and was affirmed by him without interpretation.
14. Furthermore, most of those documents such as his own SCF and the Director’s decision must be well familiar to him by then as they had been provided to him earlier while he was still legally represented by DLS, and that he never raised any such issues during his entire appeal hearing before the Board, and in the absence of anything to demonstrate that the basis of his claim has indeed been wrongly interpreted or understood by the Board, I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.
15. As such and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any of these grounds reasonably arguable or any reasonably arguable basis for his intended challenge.
16. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them 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.
17. In the Applicant’s case, the fact is that it has been established by the Director in his decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
18. 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.
19. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”
10.We heard the appeal on 24 May 2021. The applicant appeared at the hearing but had nothing to add to the matters already stated in his Notice of Appeal and written submission.
Grounds for appeal
11.In the Notice of Appeal filed on 30 November 2020, the applicant contended that:
“I want to challenge the decision dated 20 Nov 2020”
12.In his skeleton submissions filed on 26 April 2021, the applicant submitted that:
(1) the Board was misguided to believe that the Philippines practiced the rule of law when in fact it cannot protect him;
(2) the DLS (understood to mean the Duty Lawyer Service) was not effective and efficient and the judge was wrong in his comment that it would have helped him with his case;
(3) the applicant referred to a number of human right reports to support his contention that the Philippines government will harm him; and
(4) relocation is not viable because he will have to live like a fugitive.
13.The applicant agreed by a letter of 30 November 2020 that the appeal could be heard by two judges. We heard the appeal on 24 May 2021.
Discussion
14.The Notice of Appeal does not identify any ground of appeal.
15.Turning to the written submission, the applicant referred to a number of human rights reports in the written submission. Those reports were not put forward before the judge and no leave to adduce them as new evidence have been sought. We are not satisfied that the conditions for admitting new evidence on appeal laid down in Ladd v Marshall [1954] 1 WLR 1489 are satisfied and we therefore do not give any weight to those reports.
16.As for the grounds based on the lack of protection by the Philippines government, the threat from the Philippines government and difficulties of relocation were never raised as grounds for judicial review before the court below. It is thus not open to the applicant to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)).
17.In relation to the assertion by the applicant that the DLS was not effective and efficient, the applicant failed to provide any particulars or evidence to support this bare assertion. We do not accept that there is any merit to this ground.
18.There is therefore no merit in the appeal and we dismiss the appeal accordingly.
(AARIF BARMA)
Justice of Appeal
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(LISA WONG)
Judge of the Court of
First Instance |
The applicant appeared in person
[1] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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