Re Tarampi Gasat Aguir

CACV 394/2021

[2022] HKCA 572

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 394 OF 2021

(ON APPEAL FROM HCAL NO. 2534 OF 2018)

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Before:  Hon Kwan VP and Cheung JA in Court

Date of Judgment:  25 April 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.  The appeal

1.This is the appeal against the decision of Deputy High Court Judge Bruno Chan (the ‘Judge’)  dated 12 August 2021, where he refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (the ‘Board’)  dated 25 October 2018.

2.The applicant consents to this appeal being determined on paper without an oral hearing.  This is our judgment.

II.  Background

3.The applicant is a national of the Philippines.  She came to Hong Kong on 24 August 2014 and worked as a foreign domestic helper.  Her employment contract having been prematurely terminated in October 2014, she did not depart and overstayed. On 1 October 2015, she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her husband and/or his creditor for refusing to assist him in repaying his debts.

4.The details of the applicant’s claim have been summarised by the Judge at [2]-[4] of the CALL-1 Form dated 12 August 2021 (published as [2021] HKCFI 2306)  (the ‘CALL-1 Form’).

III.  The Director’s Decision

5.The Director of Immigration (the ‘Director’)  decided against the applicant’s claim on 28 February 2018.  The decision covered all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (‘Torture Risk’), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (‘HKBOR’)  being violated including right to life under Article 2 (‘BOR 2 Risk’)  and risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (‘BOR 3 Risk’), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (‘Persecution Risk’).

6.The Director found no substantial grounds for believing that the applicant would be harmed by her husband or his creditor if she returned to the Philippines.  As it was a private monetary dispute, state or police protection was available.  Further, based on reliable and objective Country of Origin (‘COI’)  information, the Director found that reasonable internal relocation alternatives were available to the applicant.

IV.  The Board’s Decision

7.The applicant appealed against the Director’s Decision to the Board.  An oral hearing was held on 12 June 2018.  On 25 October 2018, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.

8.The Board found that the applicant failed to establish a genuine and substantial risk of being killed by her husband or his creditors if she returned to the Philippines.  In any event, state/police protection and internal relocation alternatives were available.

V.  The Judge’s Decision

9.On 12 November 2018, the applicant filed a Form 86 with a supporting affirmation.  In her supporting affirmation, she stated that the decision disregarded her dangerous situation without putting forth any proper ground for her intended challenge.

10.As set out in [12]-[13] of the CALL-1 Form, the Judge did not find any error of law or procedural unfairness in decisions of both the Director and the Board, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  The Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review, and he dismissed the applicant’s leave application.

VI.  The present appeal

11.The applicant filed a notice of appeal on 17 August 2021.  In her notice of appeal, the applicant stated the following :

‘ I would like to reject and review the decision made by the Court. They disregard my dangerous situation.’

12.This ground of appeal is a bare allegation without specifics or elaboration.

13.The applicant did not lodge any written submissions, despite the directions given by the Registrar of Civil Appeals on 17 August 2021.  The applicant was therefore deemed to have abandoned her right to rely on written submissions and the application was dealt with on paper on the basis of the available documents and materials.

VII.  Our view

14.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.

15.In our view, there is no merit in the applicant’s appeal.

16.Contrary to the applicant’s bare assertion that her alleged dangerous situation was disregarded, the Judge had considered the decisions of the Director and of the Board, and had provided proper reasons for refusing the application.  The applicant did not in her notice of appeal identify any specific errors, or any other specific potential grounds for reversing the Judge’s decision.

17.We see no error in the Judge’s decision.  Accordingly, the appeal is dismissed.

Applicant, unrepresented, acting in person