Re Tumbaga Emelita Basco

CACV 265/2021

[2021] HKCA 1484

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 265 OF 2021

(ON APPEAL FROM HCAL NO 2797 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 12 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 19 November 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 29 November 2017 rejecting the applicant’s non‑refoulement claim.

Background

2.The applicant is a Philippine national.  She was employed as a domestic helper until 6 December 2016, when her contract was terminated.  The applicant departed and re‑entered Hong Kong on 1 January 2017 and was permitted to remain as a visitor until 15 January 2017.  She did not depart, and overstayed.  She surrendered herself to the Immigration Department on 18 January 2017, and lodged her non‑refoulement claim on 2 February 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 her creditors for failing to repay her loans.  The factual background was set out at [15] of the Board’s decision.

4.By notice of decision dated 29 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.  An oral hearing was held on 11 October 2018, during which the applicant gave testimony.  The Board found that there were considerable and irreconcilable inconsistencies in her evidence regarding her financial situation and family expenses during the relevant times.  The Board also noted an absence of steps taken by the creditors to enforce repayment, other than making verbal threats.  Taken cumulatively, these concerns arising from the applicant’s evidence led the Board to have doubts as to the truth of central aspects of the claim.

6.In the result, the Board was not satisfied that the applicant had an unmanageable debt or that she had ever been threatened with harm by anyone.  Thus the Board found that there was no real risk of harm in the event of refoulement, and dismissed the applicant’s appeal on 19 November 2018 on all the applicable grounds.

Decision of the court below

7.On 7 December 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In her affidavit filed in support, the applicant stated that her life was still in danger in her country.  However, she did not specify any particular grounds for judicial review.

8.Following consideration of documents only, on 12 May 2021 the Judge refused leave to apply for judicial review.  The reasons were set out at [14]‑[16] of the Form CALL‑1 as follows:

“ 14. The role of the court in judicial review is not to re‑assess the non‑refoulement claim afresh. The primary decision-makers in a claim for non‑refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non‑refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration.

15. Having rigorously 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; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board considered her evidence carefully, fairly raised its concerns about the inherent plausibility of her evidence with the Applicant and sought explanation. For reasons as given by the Board, it did not accept the evidence of the Applicant regarding her fears and risks. 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. That is a finding of fact which is within the province of the Board as the fact finding tribunal to make. The Decision of the Board was utterly without fault.

16. Accordingly, the Court concluded that there was nothing that shows there was any error of law or procedural unfairness, unreasonableness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable. The Applicant’s claim is not reasonable arguable.  There is no realistic prospect of success.  Accordingly, the Court refused her application for leave to apply for judicial review.”

Appeal to this Court

9.On 20 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.

10.The applicant lodged her written submissions for the appeal on 16 August 2021.  Those submissions consist simply of general statements of principle quoted from the case law, without identifying how they specifically relate to or apply in this case.  The applicant did not provide any details or particulars in support of her grounds of appeal or as to any specific errors by the Judge.

11.At the hearing of the appeal, the applicant reiterated that the creditors still continued to be a threat to her life because she could not repay them.  She wanted to go home because she missed her children but she could not do anything.  She asked to be allowed to stay in Hong Kong.

Legal principles

12.In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted 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 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 will only reverse that decision if the appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or his 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 will 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

13.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.

14.As we will 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.

15.In the present case, the Board rejected the applicant’s claim for non‑refoulement protection based on its adverse finding as to the applicant’s credibility.  The Board was not satisfied that the applicant had an unmanageable debt or that she had ever been threatened with harm by anyone.  Thus the Board found that there was no real risk of harm in the event of refoulement.  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. 

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

17.For these reasons, this appeal is dismissed.

The Applicant, unrepresented, appeared in person

[1]   [2021] HKCFI 1358, HCAL 2797/2018.

[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).