Re Mansano Katleen Casmere Pastrana and Others

CACV 185/2021

[2022] HKCA 214

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 185 OF 2021

(ON APPEAL FROM HCAL NO. 981 OF 2018)

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Before :  Hon Cheung and Yuen JJA in Court

Date of Judgment :  10 February 2022

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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) :

I.  Introduction

1.This is an appeal by only the 1^st applicant against the decision of Deputy High Court Judge C P Pang (‘Judge’) dated 8 April 2021 (‘Judge’s Decision’). The Judge refused to grant leave for the 1^st applicant to apply for judicial review of the decision of the Director of Immigration (‘Director’) dated 16 February 2017 (‘Director’s Decision’), and decision of the Torture Claims Appeal Board dated 30 April 2018 (‘Board’s Decision’).

2.The applicants filed a notice of appeal on 21 April 2021 and by a letter of the same date, the 1^st applicant consented to the appeal to be disposed of on paper.

II.  Background

3.The 1^st applicant is a national of the Philippines. The 2^nd applicant and 3^rd applicant are the two sons of the 1^st applicant, both of whom were born in Hong Kong in March 2015 and July 2016 respectively.

4.The 1^st applicant last entered Hong Kong in April 2014 on the strength of her passport and was permitted to remain as a foreign domestic helper for two years in Hong Kong or two weeks after termination of contract, whichever was earlier. The 1^st applicant’s contract was terminated and she overstayed.

5.The 1^st applicant lodged a non-refoulement claim with her first son, the 2^nd applicant, in June 2016, and with her second son, the 3^rd applicant, in November 2016. In December 2016, the 1^st applicant stated that she would be acting on behalf of her two sons regarding their non-refoulement claims.

6.The 1^st applicant’s non-refoulement claim was raised on the basis that she and her two sons would be harmed or killed by the 1^st applicant’s father if they were all to return to the Philippines.

7.The details of the applicants’ claim have been summarized by the Judge at [1] to [4] of the Judge’s Decision.

III.  The Director’s Decision

8.By the Director’s Decision, the Director rejected the applicants’ claims on all applicable grounds. The decision covered the applicants’ rights under Article 3 (right against torture and cruel and inhuman treatment etc) and Article 2 (right to life) of the Bill of Rights (‘BOR 3’ and ‘BOR 2’), as well as their other statutory and convention rights against torture and persecution.

IV.  The Board’s Decision

9.The applicants appealed against the Director’s Decisions to the Board on 1 March 2017. It seems the date of the hearing was wrongly stated to be 23 January 2017 in the Decision of the Board as the applicant was notified of the hearing on 20 December 2017. The Board dismissed the applicants’ appeal against the Director’s Decisions.

10.The Board found that the 1^st applicant made a series of assertions without very much detail. It found that the 1^st applicant’s oral evidence was exceptionally vague, self‑contradictory, garbled, incoherent, inconsistent with what was put forward before the Director, and lacking in credibility. It was never possible to disentangle them and establish precisely what it was that the 1^st applicant was claiming. The Board found that the 1^st applicant’s claim was completely fabricated and contains no element of truth.

V.  The Judge’s Decision

11.The 1^st applicant filed a Form 86 with supporting affirmation. When the 1^st applicant’s Form 86 was filed, her Ugandan husband (who is the father of the two sons) had also filed his application for non-refoulement to the Board but as the Board had not made the decision, the Judge allowed the 1^st applicant to amend her Form 86 to the effect that she may include her two sons as 2^nd and 3^rd applicants but she cannot include the husband as the 4^th applicant.

12.The Judge on 8 April 2021 held that the 1^st applicant’s primary facts of ill‑treatment by her father were rejected by the Board as being incredible. As there was no factual basis to support the 1^st applicant’s claims, there was no reasonably arguable basis to challenge the Board’s findings. There was no prospect of success in her intended judicial review application.

13.The Judge, however, granted leave to the two sons to issue the judicial review proceedings on the basis that their case had not been separately considered by the Board.

VI.  Grounds of appeal

14.The 1^st applicant stated the following in her notice of appeal:

‘ In reference to the decision given in the above case where my children Kigula Jacob Ssenyondo and Kigula Skywinder Lucas Kasajja were granted leave, I am requesting the high court of the Hong Kong Special Administrative Region court to give me some time to figure out or to seek for more or better protective ways for both me and the children. Currently I have no idea of the political situation in my country and also the corona virus situation around. All this makes me weak and vulnerable to continue seeking for the best protection that Hong Kong can offer. I will highly appreciate any assistance rendered to me in this matter.’

VII.  Our view

15.We will repeat the approach of this Court in dealing with cases of this nature :

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 their decisions.

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. In the determination for 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 a 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 the light of the grounds advanced by the appellant. If no viable ground is put forward to reverse the Judge, the appeal should be dismissed. It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.In our view, there is no merit in the 1^st applicant’s appeal. We agree with the Judge that as the primary facts relied upon by the 1^st applicant has already been held by the Board to be incredible, there is no reasonable arguable basis for the 1^st applicant to apply for leave for judicial review. We agree with the Judge’s view that the 1^st applicant’s claim has been rejected by reason of her lack of credibility. There is no reasonable arguable basis to take out judicial review proceedings. There is no error of law or procedural irregularity that can be found in the decision of the Judge.

17.In light of the above, we see no error in the Judge’s decision. Accordingly, the appeal is dismissed.

The 1^st applicant, unrepresented, acting in person