Re Caling Analiza Limon

CACV 264/2021

[2022] HKCA 345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 264 OF 2021

(ON APPEAL FROM HCAL 2795 OF 2018)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.This is an appeal against the decision of Deputy High Court Judge To (“the Deputy Judge”) set out in the Form CALL-1 dated 11 May 2021, by which the Deputy Judge refused to grant extension of time to the applicant to apply for leave to apply for judicial review, and further dismissed her application for leave to apply for judicial review (“the Leave Decision”) [2021] HKCFI 1346.

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 30 November 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 23 February 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.On 20 May 2021, the applicant indicated her consent for this appeal to be disposed of on paper.  Accordingly, we proceeded to consider this appeal on paper based on the available materials.

Background

4.The applicant is a Philippine national.  She entered Hong Kong on 7 January 2016 to take up employment.  On 2 February 2016, she applied for extension of stay and was permitted to remain as a visitor until 1 March 2016.  Thereafter, she overstayed and surrendered to the Immigration Department on 20 April 2016.  By written representations dated 1, 22 and 26 August 2016, she lodged a non-refoulement claim on the basis that she would be assaulted or killed by her husband if she were to return to the Philippines.  Factual details of the applicants’ claim were summarised by the Deputy Judge at [6] ‑ [11] of the Leave Decision.

5.By a Notice of Decision dated 23 February 2018, the Director rejected the applicant’s non-refoulement claim.  His decision covered torture risk^[1], BOR2 risk[2], BOR3 risk^[3], and persecution risk^[4]. Taking into account all relevant circumstances, the Director assessed the risk of harm to the applicant from her husband upon her return to the Philippines as low.  The Director considered that state protection would be available to the applicant and on the basis of Country of Origin Information (“COI”), internal relocation alternatives would be available and reasonable.

6.The applicant appealed against the Director’s Decision to the Board and attended an oral hearing before the Board on 2 October 2018.  The Board dismissed her appeal on 30 November 2018.  The Board noted multiple significant inconsistencies and omissions in her evidence and had concerns about the truthfulness of her claim.  The Board did not accept that the applicant’s husband had an ongoing adverse interest in her and that the risk of the applicant facing threat, violence or other forms of harm from her husband would be remote.  Having considered and assessed the evidence, the Board did not accept that there would be a real risk of her facing threat, violence or harm upon her return to the Philippines.  The Board further considered that state protection and internal relocation alternatives would be available to the applicant upon return to the Philippines.

The Leave Decision

7.On 7 December 2018, the applicant filed a Form 86 and a supporting affidavit applying for leave to apply for judicial review of the Board’s Decision[5].  In her supporting affidavit, she only stated that the Board disregarded her dangerous situation.  As the applicant did not request for an oral hearing, her application was considered on paper by the Deputy Judge.

8.By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review for the following reasons:

“15. The Applicant sought to review the Decision but did not advance any specific grounds for her application. She complained that the Immigration Department (referring to the Board) disregarded her dangerous situation. Her complaint is actually against the finding of facts by the Board.

16. 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 [2018] HKCA 524 at para 14(1).

17. 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; and observed a very high standard of fairness. 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 facts which is within the province of the Board as the fact finding tribunal to make. The Decision of the Board was utterly without fault.

Conclusion

18. 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 granted leave to amend her application by substituting the Board for the Immigration Department but refused her application for judicial review.”

The Appeal

9.On 20 May 2021, the applicant filed her Notice of Appeal against the Leave Decision.  In her Notice of Appeal, she stated:

“I would like to reject and review the judge’s decision on my case. They disregard my dangerous situation.” (sic)

10.Pursuant to the directions given by the Registrar of Civil Appeals on 8 July 2021, the applicant filed a Supplemental Notice of Appeal, further stating that:

“I would like to file the supplemental Notice of Appeal to set out the grounds of appeal. I would like to appeal against the decision made by the Court. The high court judgment has underestimated the possibility of harm should I return. Moreover, I was shocked that the court doubted my credibility as an individual. I have never lied when I talked about the incidents. I have been consistent in pointing out the danger should I returned to the Philippines. I therefore would like to appeal against the decision made by the high court and TCAB. Thank you for your kind consideration.” (sic)

11.On 22 July 2021, the applicant lodged her written submissions.  In her written submissions, she contended that the Board had been insensitive to her case and had overlooked or was misguided to believe that the Philippines would practice the rule of law when in fact, the government could not protect her.  She further alleged that the Board had been judging her case arbitrarily and failed to look into her case based on the Filipino context.

Discussion

12.The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

13.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 the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

14.In light of the above, it is thus incumbent on the applicant to point out the errors in the Leave Decision with sufficient particulars and specifics.

15.The applicant has not in her Notice of Appeal, supporting affirmation or written submissions identified any error committed by the Deputy Judge with sufficient particulars and specifics.  As no viable ground of appeal to challenge the Leave Decision has been raised by the applicant, this appeal must fail on this basis alone.

16.Furthermore, as repeatedly emphasised by this Court, assessment of evidence, COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  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: 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].

17.In any event, we have reviewed both the Board’s Decision and the Leave Decision and the reasons they gave for their decisions.  We see no error of law, or mistake of fact, or procedural impropriety in reaching those decisions.  The applicant had proper opportunities to plead and present her case before the Board and the Deputy Judge.  The Board had weighed the evidence and considered her claim in detail.  The Deputy Judge had also considered her application for leave to apply for judicial review in detail.  In the absence of any error committed by the Deputy Judge, there is no basis to disturb the Leave Decision.

18.For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.

The applicant acting in person