Villalva Alicia Garcia v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CACV 177/2021

[2021] HKCA 1173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 177 OF 2021

(ON APPEAL FROM HCAL NO 1424 OF 2018)

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BETWEEN

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Before:  Hon Yuen and Chow JJA in Court

Date of Written Submissions:  23 July 2021

Date of Hearing:  17 August 2021

Date of Judgment:  24 August 2021

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J U D G M E N T

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

Introduction

1.On 8 April 2021, DHCJ K.W. Lung (“the Judge”)  refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 3 July 2018 and dismissed the leave application.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  dated 19 December 2017 rejecting the applicant’s non-refoulement claim.

2.On 19 April 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.

Background

3.The Applicant is a Filipino national.  She came to Hong Kong and applied for asylum between 2009 and 2013.  Later, she returned to the Philippines and abandoned her application.  She came to Hong Kong again on 11 October 2014 as a visitor and was allowed to stay until 18 October 2014.  On 27 October 2014 and 11 November 2014, she raised a non-refoulement claim.  However, she did not respond to notices regarding her non-refoulement claim sent to her by the Immigration Department.  On 24 August 2017, she made a further non-refoulement claim.

4.Her claim was made on the basis that, if refouled, she and her daughter’s lives would be in danger due to threats from Meleja Rafael (“Meleja”), the wife of her ex-boyfriend, Andoy Rafael.

5.By a Notice of Decision dated 19 December 2017, the Director refused the applicant’s claim on all applicable grounds based on BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and torture risk[4].

6.The applicant appealed the Director’s decision to the Board.  She attended a hearing before the Board on 11 April 2018.  By its decision dated 3 July 2018, the Board rejected the evidence of the Applicant as being vague, generalised, unconvincing, inconsistent and unreasonable[5], and found that there was no real chance that the applicant or her daughter would face serious harm from Meleja or any other persons on behalf of Meleja now or in the foreseeable future if they were to return to the Philippines.  Accordingly, the Board rejected her non-refoulement claim on all applicable grounds and confirmed the Director’s decision.

Decision of the court below

7.On 19 July 2018, the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision.  In her supporting affirmation, she said she would like to “reject and review” the Board’s decision as it disregarded her dangerous situation.

8.The applicant did not request for an oral hearing and the Judge disposed of the application on paper.  By his decision dated 8 April 2021, the Judge refused the application for leave to apply for judicial review.  The reasons for the refusal were set out at [11] – [15] of the Form CALL-1 as follows:

“11. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

12. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1)  … …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.’

13. The Board has given its reasons for coming to its conclusion that she and her daughter did not have any real risk of harm if they returned to the Philippines. Her grounds in support of this application does not assist her.

14. The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

15.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”

Appeal to this Court

9.On 19 April 2021, the applicant filed her Notice of Appeal against the Judge’s decision.  In the Notice of Appeal, she advanced the following grounds of appeal (sic):

“I would like to reject and review the decision made by Torture Claims Appeal Board on my non-refoulement case. They disregard my dangerous situation.”

10.In the applicant’s skeleton argument dated 23 July 2021, the applicant argues that:

(1)  Her daughter, who has the right of abode in Hong Kong, will either have to be separated from her, or return to the Philippines with the applicant and they will face life threat there.

(2)  Ordinary people in the Philippines face unlawful and extrajudicial killings as part of the “drug(s)  war” pursued by the Government of the Philippines, and it is not safe for her to return to the Philippines especially when the Board has accepted that there is a risk for her to return to the Philippines. 

(3)  The Director did not accept that the applicant would face any risk of life upon her return to the Philippines but in fact, her country is notorious for police extrajudicial killings and women are vulnerable especially in cases of family and domestic abuse. 

In support of her aforesaid arguments in (2)  and (3)  above, the applicant refers to and relies on the “Human rights report of Philippines 2017/18 produced by Amnesty International” and “Human rights Watch world report 2018 - Philippines”.   

11.At the hearing, the Applicant repeated her request to be allowed to remain in Hong Kong in order to be with her daughter, whom the Applicant said was a Hong Kong permanent resident studying in Hong Kong.

Legal principles

12.In considering this appeal, we apply the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  The salient principles are as follows:

(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 the 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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

13.The applicant has not in her notice of appeal or submissions raised any or any proper ground of appeal, or identify any specific errors in the Judge’s decision, or any specific potential grounds for reversing the Judge’s decision. 

14.The Board rejected the applicant’s evidence on the basis that it was vague, generalised, unconvincing, inconsistent and unreasonable.  As mentioned earlier, the present appeal is not an avenue of appeal of the Director’s or the Board’s decision.  Assessment of evidence and risk are within the province of the Board.  The court would only intervene in the Board’s decision on valid public law grounds.  We find no such ground in this case.  The matters mentioned in the applicant’s skeleton argument were not raised in the application below.  The fact that the applicant’s daughter may have the right of abode in Hong Kong is not a matter which can support the applicant’s non-refoulement claim.  The alleged unlawful or extrajudicial killings in the Philippines in connection with the “drugs war” pursued by the Government of the Philippines, or the alleged vulnerability of women in cases of family or domestic abuse there, are also not relevant to the applicant’s non-refoulement claim. 

15.It is incorrect for the applicant to say that the Board accepted that there was a risk of harm upon her return to the Philippines.  On the contrary, the Board found at [66] of its decision that “given the above findings, the Board is satisfied that there is no real chance that the Applicant or her daughter Garcia will face serious harm from Meleja or any other persons on behalf of Meleja now and in the foreseeable future in the Philippines.  The Board is satisfied that the Applicant’s fears of harm are not well-founded.”

16.Lastly, we are satisfied that the Judge reviewed the Board’s decision with anxious scrutiny and rigorous examination.  We agree with the Judge’s conclusion that there is no error of law or procedural unfairness in the Board’s decision and its findings are not in any respect open to challenge as Wednesbury unreasonable or irrational.

Order

17.For the above reasons, this appeal is dismissed.

The applicant, unrepresented, appeared in person