Re Dimaculangan Merilo Evano

CACV 95/2021

[2021] HKCA 1140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 95 OF 2021

(ON APPEAL FROM HCAL NO. 1599 OF 2019)

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Before:  Hon Cheung JA and B Chu J in Court

Date of Judgment:  6 August 2021

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J U D G M E N T

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

1)  The appeal

1.This is an appeal by the applicant against the decision of Deputy High Court Judge P Li of 3 March 2021 in which he refused to grant leave to the applicant to apply for judicial review.

2)  Factual background

2.1The applicant is a national of the Philippines.  She came to Hong Kong on 7 October 2016 as a visitor and was allowed to stay until 14 October 2016.  She overstayed and surrendered herself to the Immigration Department.  She made a non-refoulement claim on 7 April 2017.

2.2The basis of the applicant’s claim is that she would be harmed or killed by one PJ who accused the applicant of reporting to the Police that he had handed a bag of drugs to another person.

2.3The background facts have been summarized in the decision of the Judge at [4] and [5].

3)  The Director’s Decision

3.The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 15 October 2018.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (‘BOR 3’), Bill of Rights Article 2 (right to life)  risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

4.1The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  The Board decided not to hold an oral hearing and decided the case on paper.  The Board dismissed the applicant’s appeal on 16 May 2019 (‘the Board’s Decision’).

4.2The Board found that the applicant’s purported three previous incidents of violence were all verbal threats and no physical violence was involved.  It was a private dispute matter.  The applicant did not seek state protection and there was absence of evidence to suggest that there was a lack of state protection.  There were no substantial grounds for believing that there is a real risk of harm.  

5)  Decision of the Judge

5.1The applicant filed her Form 86 and supporting affirmation.  She alleged that the Board was wrong for not holding an oral hearing to determine her case.  At the applicant’s request the Judge held an oral hearing in December 2020 but the applicant said she had nothing to add and had no additional information to provide.   

5.2The Judge held that it is incumbent upon the applicant to show specifically her complaint against the country of origin information relied upon by the Board.  A general broad complaint will not suffice.  He further held that the Board had read the documents and acted according to legal principles when deciding not to hold an oral hearing.  He rejected the argument that the applicant should have been invited to file further written submissions if oral hearing was not granted because if she had intended to do so, she would have ample time to provide written submissions but did not do so even at the oral hearing held in December 2020.  There was no error or procedural irregularity present.

6)  Grounds of appeal

6.1In the notice of appeal, the applicant stated that she will face hardship if she to be refouled.  She claimed that the Board relied on source of news which was not officially recognized or was simply hearsay.  It also relied on cases which were outdated.

6.2In the applicant’s written submissions, she referred to authorities and legal principles that are commonly cited in non-refoulement cases without showing how these principles relate to her case.

7)  Our view

7.1We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong  v Yusuf Yu [2018] HKCA 451 at [38] and [39]. 

7.2It 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.

7.3We see no basis to disturb the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.

Applicant, unrepresented, appearing in person