Re Unlayao Juralyn David

CACV 145/2022

[2022] HKCA 1052

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 145 OF 2022

(ON APPEAL FROM HCAL NO. 191 of 2019)

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JUDGMENT

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Hon Barnes J (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 8 April 2022[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 18 January 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 1 September 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a Philippine national.  She was employed as a domestic helper in Hong Kong until 22 May 2012, when her last employment contract was terminated.  She did not depart, and has overstayed.  On 10 June 2015 the applicant surrendered herself to the Immigration Department, and raised her non-refoulement claim on 13 July 2015. 

3.The applicant’s claim was based on the fear that, if she returned to the Philippines, she would be harmed by her violent and abusive husband who stabbed her on the forehead and later joined the New People’s Army after he fled the matrimonial home.  The factual background was summarized at paragraphs 23.1 to 23.22 of the Board’s decision.

4.By notice of decision dated 1 September 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 20 December 2018, during which the applicant answered questions from the Board.  On the whole, the Board did not find the applicant to be telling the truth, due to inconsistencies between her oral and written evidence.  Nevertheless, assuming the applicant’s narrative is true, the Board found that there was no risk of harm from the applicant’s husband as he had not contacted her in the 14 years since he fled, that she was able to stay in the Philippines for 2 years without incident after the stabbing, that she was able to return to the Philippines from Hong Kong for 3 times with no mishap, and that she had never availed herself of protection from the police or other public authorities in her country. 

6.The Board found that there was no real risk of harm in the event of refoulement.  The Board also found that internal relocation was viable.

7.Thus on 18 January 2019 the Board dismissed the applicant’s appeal on all the applicable grounds.

Decision of the court below

8.On 21 January 2019, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In her supporting affirmation she raised a number grounds for judicial review, which the Judge summarized at [12] of the Form CALL-1 as follows:

“12. In her affirmation in support of her application, the applicant has raised the grounds below:

(1) She was not legally represented at the hearing and was not legally aided for her hearing.

(2) The hearing bundle was given to her just a few days before the hearing. The contents are in English. She did not have sufficient time to prepare for the hearing.

(3) The Board did not notify her by phone although she had asked it to do so.

(4) She was confused of what happened at the hearing. She had given the answers honestly. The Board was wrong to question her credibility.

(5) The Board had relied upon source of news which is not officially recognized and it also relied on outdated cases.

(6) The Board did not go through the screening process for the BOR2 risk.

(7) The Board had not made proper inquiry and without careful understanding of her situation. The adjudicator is invited to tour her country to make inquiry there.” [sic]

9.In her Form 86 the applicant also raised the ground that the Board had not taken into account relevant country of origin information and instead cherry-picked and took into account information of little or no relevance.

10.Following a hearing on 7 February 2022 at which the applicant appeared before the Judge, on 8 April 2022 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [13] – [17] of the Form CALL-1 as follows:

“13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …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.’

16. There is no valid reason from the applicant to challenge the Board’s Decision. If she did not have enough time to prepare for the hearing because of the late delivery of the hearing bundle, she could have asked an adjournment of her hearing for her to make her preparation. She did not do so. However, up till now, she has not been able to tell this Court in what respects the Board’s finding of the facts against her was due to her unpreparedness of her case. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that the applicant is not entitled to free legal representation at every stage of the proceedings as she had already had duty lawyer’s service at the screening stage [22]. The screening process in the first place had covered all the facts of her case. There is no requirement under the Ordinance that another screening process has to be made for her BOR 2 risk claim. To say that the Board had relied upon outdated case or not officially recognized source of news is only her opinion. The Board can rely upon the Country of Origin Information without going to her country to make the inquiry as she suggested. All grounds above fail.

17. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.”

Appeal to this Court

11.On 19 April 2022, 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.

12.However, the applicant did not provide any particulars in support of her grounds of appeal.

13.The applicant lodged written submissions on appeal on 7 June 2022.  Those submissions largely consist of general legal principles and quoted passages from case authorities, without any explanations as to how they specifically advance the applicant’s case.  The applicant also submitted that the Board erred by simply trying to see whether it could find fault with the Director’s decision, that the Board failed to scrutinize the Director and that it is a general practice of the Board not to question or find fault with the Director’s decision.  She submitted that the Board ought to have considered country of origin conditions.  However, she did not provide any details or particulars in support of her arguments, or identify any specific errors in the Judge’s decision.

14.During the hearing before us, the applicant did not have anything to add.

Legal principles

15.In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [6]; Re Md Shohel Sheak [7] ; and Re Limbu Birkhaman [8]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, 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’s decision, 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

16.As mentioned earlier, the applicant did not in her Notice of Appeal or submissions provide any particulars in support of her grounds of appeal or written arguments, or 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 [9]; Re Aziz Nasir [10]; Re Kharsu Numan [11]; Re Salim Ahmed [12].

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

18.In the present case, the Board rejected the applicant’s claim for non-refoulement protection, due to its finding that there was no risk of harm from the applicant’s husband as he had not contacted her in the 14 years since he fled, that she was able to stay in the Philippines for 2 years without incident after the stabbing, that she was able to return to the Philippines from Hong Kong for 3 times with no mishap, and that she had never availed herself of protection from the police or other public authorities in her country.

19.Thus the Board found that there was no real risk of harm in the event of refoulement.  The Board also found that internal relocation was viable.  Such findings are within the province of the Board.  The Court will not interfere with such assessments unless they are reversible on public law grounds.  There are no valid public law grounds in this case.

20.Having considered the materials before us, we are of the view that the Judge’s conclusion was justified and that he was right to refuse leave.  There are no reasonably arguable grounds to challenge his decision.

21.For these reasons, we are of the view that the appeal has no merits and accordingly this appeal is dismissed.

The applicant, unrepresented, acted in person.

[1] [2022] HKCFI 995, HCAL 191/2019

[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).

[6] [2018] HKCA 524 at paragraph 14

[7] [2018] HKCA 714 at paragraph 13

[8] [2019] HKCA 50 at paragraph 11

[9] [2019] HKCA 20

[10] [2019] HKCA 578

[11] [2019] HKCA 626

[12] [2020] HKCA 244