Gajo Reynaldo Bernardino v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

CACV 190/2022

[2022] HKCA 1267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 190 OF 2022

(ON APPEAL FROM HCAL NO 2222 OF 2018)

_____________________

BETWEEN

_____________________

Before: Hon Yuen JA and Lisa Wong J in Court

Date of Written Submission: 27 June 2022

Date of Hearing: 8 August 2022

Date of Judgment: 13 September 2022

___________________

J U D G M E N T

___________________

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

Introduction

1.On 29 April 2022, DHCJ K.W. Lung (“the Judge”) refused 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 (“the Board”) dated 11 September 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 31 May 2018 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.On 10 May 2022, the applicant filed a Notice of Appeal against the Judge’s decision.

3.In compliance with the directions of the Registrar of Civil Appeals given on 31 May 2022 and Practice Direction 4.1, the applicant lodged his skeleton argument on 27 June 2022.

Background

4.The Applicant is a national of the Philippines. He entered Hong Kong on 23 October 2017 as a visitor and was permitted to stay until 6 November 2017. He did not depart and had overstayed since 7 November 2017. He surrendered to the Immigration Department on 20 November 2017 and on 26 March 2018, he lodged a non-refoulement claim alleging that if refouled, he might be killed by drug traffickers and/or would be arrested or killed by the Philippine police, as he had trafficked in a parcel of drugs on his cousin’s instruction. The factual background of this case is succinctly summarized by the Judge in [4] of the Form CALL-1 ([2022] HKCFI 1172).

5.By a Notice of Decision dated 31 May 2018, the Director assessed the applicant’s claim on all applicable grounds including BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.

6.The applicant lodged an appeal to the Board against the Director’s decision. The appeal was heard on 27 August 2018 and by the decision dated 11 September 2018, the Board rejected the appeal/petition and confirmed the Director’s decision. Having considered the applicant’s evidence, for the reason set out at [22], the Board found that the applicant was not a truthful witness and many parts of his evidence were illogical and contradictory.

7.Regarding his story that he might be harmed by his cousin, whom he had earlier confronted over the parcel of drugs, he alleged that his cousin has already been killed by the police during a raid on his house [18].

8.As for his fear of harm from the police, the Board did not accept his story that he was wanted by the Philippines police. After the alleged raid, when he said he overheard the police saying they were looking for one more person (which he considered meant himself), he travelled to Qatar, then returned to the Philippines, renewed his passport and left the Philippines again through proper immigration channels using his own passport.

9.In any event, on his own story, if he was wanted by the authorities, it was because when he found out that what he was carrying for his cousin was drugs, he did not report it to the police and took the drugs home instead. Thus, on his own case, he was the perpetrator of a serious crime and not a refugee. Further, relevant country of origin information (“COI”) showed that Philippine laws do not provide for a death penalty for drugs crimes. For the aforesaid reasons, his non-refoulement claim failed on all applicable grounds.

Decision of the court below

10.On 12 October 2018, the applicant filed his Form 86 for leave to apply for judicial review of the decision of the Board. He did not provide any ground for seeking relief in his Form or in his supporting affirmation.

11.The applicant did not request for an oral hearing and the Judge disposed of the application on paper. By the decision dated 29 April 2022, the Judge refused to grant leave to the applicant to apply for judicial review. The reasons for the refusal were set out at [13] – [18] 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 Decision 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. The applicant has not raised any valid ground to challenge the Board’s Decision.

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.

18. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

Appeal to this Court

12.On 10 May 2022, the applicant filed his Notice of Appeal against the Judge’s decision. In his Notice of Appeal, he advanced the following grounds of appeal:

“the Plaintiff will face hardship if he is to return back to his home country and that [the Board] has significantly relied on the source of news which is not officially recognised, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

13.The applicant failed to state what was the “source of news” which was not recognized or hearsay. He failed to state what were the “outdated” cases or the “dramatic changes”. In his written submissions, he quoted passages from ST v Director of Immigration^[5] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions citing “the high standards of fairness” and “minimum standards of procedural fairness”. However, he did not explain or elaborate how they were not complied with in his case.

14.At the hearing before this court, he said he wished to produce further “documents” from the Philippines to show “what happened” to him. He had not produced these documents to the Board at the hearing in August 2018, or informed the judge prior to the judge’s decision in 2022, that he wished to do so. He did not have these documents with him even at the hearing of the appeal before this court, as he said (a) he had asked his siblings to send them to him before the pandemic, but they could not because of the pandemic; and (b) his friend was meant to bring them to Hong Kong, but could not because of the “rallies” (social incidents) in Hong Kong. When this court asked why the documents could not be faxed or attached to an email to him, he said it was because they were “confidential”. When asked about the nature of these documents, it turned out they were only photographs of himself when he was wounded in the Philippines. Before the Board, he had said that his cousin hit him on the face and head when they argued about the parcel of drugs [18].

15.We fail to see how such photographs of himself could be regarded as “confidential” such that they could not be faxed or attached in an email to him. Further, there was no reason why he did not produce them before the Board, which heard his case before the time of the social incidents and the pandemic. In any event, they would not affect the conclusion of the Board as, even on his own story, his cousin had been subsequently killed in the police raid, and he himself was a fugitive from justice. Accordingly, we consider we should proceed with the determination of this appeal in the absence of these alleged photographs.

Legal principles

16.In assessing the merit of the appeal, we have considered the legal principles set out by this Court in 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]. For the purposes of this appeal, the salient principles are as follows:

(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 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. 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.

(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 or for running arguments which could and should have been raised but not raised before the judge. In the determination of 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 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. An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review.

Discussion

17.The applicant failed in his Notice of Appeal and written submissions to provide any valid ground of appeal against the Judge’s decision or to identify any specific errors or any other specific potential grounds for reversing the Judge’s decision.

18.The Board rejected the applicant’s case as his evidence lacked credibility and it did not accept that he was wanted by the Philippines police as he was able to leave the Philippines through the airport freely using his own passport. As these were within the Board’s province of findings, we see no proper basis to intervene.

19.In any event, the Board found no merit in his claim for non-refoulement protection as he fled the Philippines to avoid prosecution and punishment for a serious crime that he had admittedly committed. In other words, he was a fugitive from justice, and there was no evidence that any official prosecution which he might face upon his return was so excessive as to amount to persecution.

20.Having considered the materials before us, we are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny. We are of the view that the Judge’s observations are fully justified and we cannot find any flaws in his analysis and he was entitled to refuse leave.

Order

21.For the above reasons, this appeal is dismissed.

The applicant, unrepresented, appeared in person