Re Bernados Jennifer Pitallo

CACV 251/2021

[2021] HKCA 1489

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 251 OF 2021

(ON APPEAL FROM HCAL NO 3010 OF 2018)

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Before:  Hon G Lam JA and Coleman J in Court

Date of Hearing: 27 September 2021

Date of Judgment: 7 October 2021

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an appeal from the decision of Deputy High Court Judge To (“Judge”) on 4 May 2021[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑refoulement Claims Petition Office (“Board”) dated 17 December 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 15 November 2017 rejecting the applicant’s non‑refoulement claim.

Background

2.The applicant is a Philippine national.  She arrived in Hong Kong in June 2013 and was employed as a domestic helper until 1 September 2016 when her contract was terminated.  She was permitted to remain as a visitor until 29 September 2016. She did not depart, and overstayed.  She surrendered to the Immigration Department on 28 November 2016, and lodged her non‑refoulement claim on 11 April 2017. 

3.The applicant’s claim was based on the fear that, if she returned to the Philippines, she would be harmed or even killed by a creditor for failing to repay her loan.  The factual background was set out at paragraphs 10 to 22 of the Board’s decision.

4.By notice of decision dated 15 November 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against her.  The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]

5.The applicant appealed to the Board against the Director’s decision.  As credibility was not in issue, and because the Board considered that no issues arose that needed clarification, it proceeded with the appeal by way of paper review instead of an oral hearing.

6.The Board found that, even assuming the applicant’s allegations were true, she had never suffered injury from her creditor, and there was no evidence that any of her family members suffered harm from the creditor pursuant to his alleged threats.

7.Thus the Board found that there was no real risk of harm in the event of refoulement.  The Board also considered that internal relocation was viable.  Therefore, the Board dismissed the applicant’s appeal on 17 December 2018 on all the applicable grounds.

Decision of the court below

8.On 31 December 2018, the applicant sought leave from the Court of First Instance to apply for judicial review of the Board’s decision.  In her Form 86, the applicant raised a number of grounds for judicial review, which were summarized by the Judge at [21] of the Form CALL‑1.

9.Following a hearing on 27 April 2021 at which the applicant appeared in person before the Judge, on 4 May 2021 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [21]‑[29] of the Form CALL‑1 as follows:

“ 21. The Applicant advanced four grounds of appeal in her Notice of Application for leave to apply Judicial Review:

(1) the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) the Board acted in a procedurally unfair manner in dealing with the appeal;

(3) the Board’s decisions to refuse the appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness;

(4) the Board failed to meet the greater care and duty owed to a self‑represented claimant;

(5) she had not been given an opportunity to present her submission at an oral hearing; and

(6) the Board wrongly relied on Country of Origin Information which are not officially recognized, are simply hearsay and not credible.

22. Under Ground (1), the Applicant accused the Board of having unlawfully fettered its discretion by refusing her appeal on the grounds that she did not satisfy the requirement for non‑refoulement protection. This cannot be a valid ground for application for leave. If an applicant did not satisfy the requirement for non‑refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the notice and dismiss the appeal. The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness or irrationality in its Decision. The answer to this question will become obvious after considering the other grounds.

23. Under Ground (2), the Applicant accused the Board of having acted in a procedurally unfair manner in dealing with her appeal. She did not give any particulars. At the hearing, the Court attempted to solicit from her as to what was the procedural unfairness that she was complaining. After repeated attempts, the only answer she could give was that she felt the Decision was unfair to remove her from Hong Kong and send her back to the Philippines where her life would be at risk.

24. As for her Grounds (3) and (4), the Applicant had no particulars to offer. She said she felt the Decision was unreasonable or irrational because the Board decided against her.

25. As for her Ground (5), the Applicant’s complaint is that her appeal was dismissed without an oral hearing. She had no chance to be heard and was not invited to submit written submissions. Indeed, the Board has discretion to determine an appeal without a hearing pursuant to paragraph 12 of Schedule 1A to the Immigration Ordinance. Paragraph 12 provides as follows:

‘ The Appeal Board may determine an appeal without a hearing if, having regard to the material before it and the nature of the issues raised, the Board is satisfied that the appeal can be justly determined without a hearing.’

26. This is not a case where an asylum seeker has his right determined without him being heard. The Applicant made a claim. She completed a non‑refoulement claim form with the assistance of the Duty Lawyer Service. She attended a screening interview and was provided with legal representation. She was assisted by a qualified interpreter. She was provided a transcript of the interview. She had the opportunity to present her case to the Director at the screening interview. She was informed of the decision of the Director in rejecting her application and the reasons. She was informed of her right to appeal to the Board, which she exercised. She had the opportunity to state her grounds of appeal in her Notice of Appeal/Petition, which she did. She had presented the entirety of her case to the Board, including the non‑refoulement claim form, the transcript of her screening interview, the decision of the Director in the Notice, and the grounds of her appeal to the Board.

27. As stated in paragraph 27 of the Decision, in deciding not to hold an oral hearing, the Board had forefront in its mind the high standard of fairness to be afforded to the Applicant. The Applicant had presented her full case to the Director, which was to be re-considered by the Board. There was nothing which required clarification. The Board then proceeded to make a determination on the basis that the facts as asserted by the Applicant were all true; namely that she borrowed money from Rodrigo, that she was unable to repay and Rodrigo threatened to kill her. There was no primary factual issue to be determined. The remaining issues were for the Board to assess how likely will the harm feared by the Applicant (ie the feared risk) materialise if she returned to the Philippines; and whether on that assessment, the Applicant qualify for protection under any of the four applicable grounds under the USM. The legal requirements under the four applicable grounds are very well settled and were clearly and correctly set out in paragraphs 29 to 38 of the Decision. The present case is clearly one to which paragraph 12 applied. Nothing went amiss with the Board determining the appeal on paper without an oral hearing.

28. As stated in paragraph 27 of the Decision, in deciding not to hold an oral hearing, the Board had forefront in its mind the high standard of fairness to be afforded to the Applicant. The Applicant had presented her full case to the Director, which was to be re‑considered by the Board. There was nothing which required clarification. The Board then proceeded to make a determination on the basis that the facts as asserted by the Applicant were all true; namely that she borrowed money from Rodrigo, that she was unable to repay and Rodrigo threatened to kill her. There was no primary factual issue to be determined. The remaining issues were for the Board to assess how likely will the harm feared by the Applicant (ie the feared risk) materialise if she returned to the Philippines; and whether on that assessment, the Applicant qualify for protection under any of the four applicable grounds under the USM. The legal requirements under the four applicable grounds are very well settled and were clearly and correctly set out in paragraphs 29 to 38 of the Decision. The present case is clearly one to which paragraph 12 applied. Nothing went amiss with the Board determining the appeal on paper without an oral hearing.

29. As for the overall or general complaint about irrationality and unreasonableness in the Board’s findings, these grounds of complaint are against the finding of facts by the Board.  The function of the court in judicial review is not to re-assess the non‑refoulement claim afresh.  The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  Having rigorous examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non‑refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault.  Nothing went amiss by the Board determining her appeal without holding an oral hearing.”

Appeal to this Court

10.On 17 May 2021, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal are that she would face hardship if she were to return to her home country, that the Board relied on news sources that were not officially recognized or were simply hearsay and on outdated cases, and that the lack of credible sources of information resulted in the Board making groundless speculations.

11.The applicant lodged her written submissions for the appeal on 30 July 2021.  Those submissions consist virtually entirely of general statements of law quoted from case law, without identifying how they relate to or apply in this case.  Paragraph 5 of her submissions states that the Board acted in a procedurally unfair manner by failing to properly assess her credibility.  The applicant did not provide any details or particulars in support of her grounds of appeal or as to how the Board failed to properly assess her credibility or as to any specific errors made by the Judge. 

12.At the hearing of the appeal, the applicant confirmed that she had nothing to add to the written materials.

Legal principles

13.In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has set out in dealing with appeals of non‑refoulement cases: see 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].  For the purpose of this appeal, 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.  Although 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 an 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 the decision 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 the appeal were a fresh application for judicial review.

Discussion

14.As mentioned earlier, the applicant did not in her Notice of Appeal or submissions provide any particulars in support of her grounds of appeal, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

15.As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

16.In the present case, the Board rejected the applicant’s claim for non‑refoulement protection based on its findings that, assuming her allegations are true, the applicant had not suffered any injury from her creditor, and nor had her family suffered any harm.  Credibility was not in issue.  As such, the Board found that there was no real risk of harm in the event of refoulement.  The Board also considered that internal relocation was viable.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

17.Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge was right to refuse leave.  There is no reasonably arguable ground to challenge his decision.

18.For these reasons, this appeal is dismissed.

The Applicant, unrepresented, appeared in person

[1]   [2021] HKCFI 1248, HCAL 3010/2018.

[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.

[4]   This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[5]   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).