Panergo Marites Lacebal v. Torture Claims Appeal Board

CACV 185/2022

[2022] HKCA 1117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 185 OF 2022

(ON APPEAL FROM HCAL NO 2046 OF 2018)

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BETWEEN

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Before:  Hon Yuen and Chow JJA in Court

Date of Written Submissions:  20 May 2022

Date of Judgment:  4 August 2022

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.On 6 May 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 29 April 2022 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 13 September 2018. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 11 January 2018.

BACKGROUND

2.The Applicant is a national of the Philippines. She first arrived in Hong Kong in April 2011 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination (whichever was the earlier). Her last employment contract was prematurely terminated on 5 June 2015. She did not depart from Hong Kong in accordance with her limit of stay, and became an overstayer. On 11 August 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 the mayor of her home town for refusing to be a witness against her brother who allegedly had stolen some voting boxes containing votes cast in an election for the position of the major which took place in 2010. Details of the Applicant’s claim were summarised by the Judge at §§1-4 of the CALL-1 Form.

3.By a Notice of Decision dated 11 January 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.The Applicant appealed the Director’s decision to the Board. On 13 September 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”).

5.In its decision, the Board found inconsistencies, discrepancies, and implausibility in the Applicant’s claim of fear of being harmed by the mayor of her home district, and that her claim was not corroborated by any reliable evidence. The Board did not accept that there would still be any adverse interest in her over a matter that concerned her brother after many years and who had since disappeared without a trace. The Board was not satisfied that the Applicant would face any risk of any of the proscribed harms upon her return to the Philippines, and found that her claim for non-refoulement protection failed on all the applicable grounds.

THE JUDGE’S DECISION

6.On 27 September 2018, the Applicant filed her Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

7.On 29 April 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“11. In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 67 – 75 in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

12. Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.”

THIS APPEAL

8.In her Notice of Appeal filed on 6 May 2022, the Applicant merely stated that she would like to reject and review the Judge’s decision, and alleged “they” disregarded her dangerous situation.

9.In her 3-page written submissions dated 20 May 2022, the Applicant complained that the Board’s insensitivity about her case and the situation in the Philippines constituted an error of judgment. She repeated that she would be in grave danger should she return to the Philippines, and contended that the Board was misguided to believe that the Philippines actually practised the rule of law. She also argued that the Board did not have a firm grasp of the context in the Philippines and their only knowledge was through country of origin information which was inadequate to understand the local situation.

DISCUSSION

10.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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

11.In particular, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022. We do not see any such error of law, procedural unfairness or irrationality in the Board’s Decision in the present case.

12.The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 29 April 2022, and has failed to raise any viable ground of appeal against the Order.

13.The Applicant’s appeal has no merits, and is dismissed.

The Applicant, acting in person