Re Marquez Imelda M.

CACV 210/2022

[2022] HKCA 1339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 210 OF 2022

(ON APPEAL FROM HCAL NO. 2503 of 2018)

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Before: Hon G Lam JA and Andrew Chan J in Court

Date of Hearing: 30 August 2022

Date of Judgment: 19 September 2022

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JUDGMENT

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Hon Andrew Chan J (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 13 May 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 30 October 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 6 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a Philippine national. She last arrived in Hong Kong in April 1995 and was employed as a domestic helper in Hong Kong until 21 April 1999, when her last employment contract was prematurely terminated. She was subsequently permitted to remain in Hong Kong as a visitor until 11 June 1999, however she did not depart, and has overstayed. On 25 February 2009, the applicant was arrested by police, and was referred to the Immigration Department the next day. She raised a torture claim on 3 June 2009, which the Director rejected on 12 June 2012. The applicant raised her current non-refoulement claim on 9 September 2013.

3.The applicant’s claim was based on the fear that, if she returned to the Philippines, she would be harmed by her husband’s creditors, for his non-payment of gambling debts, and for which the creditors subsequently forced her to contribute to repaying and to guarantee the debts. The factual background was set out at paragraphs 11 to 49 of the Director’s decision.

4.By notice of decision dated 6 April 2017, the Director assessed the applicant’s claim on all applicable grounds except torture risk[2] (which had previously been decided) and determined it against her. The applicable grounds covered by the Director’s decision dated 6 April 2017 are BOR 3 risk[3], persecution 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 13 June 2018, during which the applicant gave oral testimony and answered questions from the Board, with assistance from an Ilocano language interpreter. The Board found that the applicant’s evidence seemed sincere but was unreliable, due to her heavy reliance on hearsay in addition to inconsistencies and implausible aspects in her narrative. As such, the Board found that there was no real risk of harm in the event of refoulement.

6.The Board also considered whether reasonable state protection would be available. The Board noted that the Philippines National Police (“PNP”) was ineffective and corrupt, and that the criminal justice system was overburdened, slow and ineffective. On the other hand, the Board also noted country of origin information suggesting that efforts to reform and professionalize the PNP were continuing, that the Supreme Court continued its efforts to reduce corruption, and that the Ombudsman had the authority to prosecute public officials. On that basis, the Board found that some state protection would be available. As for internal relocation, the Board considered that the risk of harm to the applicant was localized and that if necessary, it would not be unduly harsh for her to relocate within the Philippines.

7.Thus on 30 October 2018 the Board dismissed the applicant’s appeal on all the applicable grounds except torture risk.

Decision of the court below

8.On 6 November 2018, 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 stated that the Board and the Director had disregarded her dangerous situation, but did not elaborate further.

9.Following a hearing on 20 April 2022 at which the applicant appeared before the Judge, on 13 May 2022 the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [11] – [13] of the Form CALL-1 as follows:

“11. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim if true 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.

13. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

Appeal to this Court

10.On 24 May 2022, the applicant filed her Notice of Appeal against the Judge’s decision. Her stated ground of appeal is that the decision is unreasonable, however she did not provide any particulars in support.

11.The applicant lodged written submissions on appeal on 22 July 2022. Those submissions largely consist of general legal principles and quoted passages from case authorities, without any explanation 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 was a general practice of the Board not to question or find fault with the Director’s decision. Further, 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.

Legal principles

12.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, 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

13.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].

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

15.In the present case, the Board rejected the applicant’s claim for non-refoulement protection, due to its finding that her evidence was unreliable despite seeming sincere. Thus the Board found that there was no real risk of harm in the event of refoulement. 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 seem to be no such valid public law grounds in this case.

16.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 is no reasonably arguable ground to challenge his decision.

17.For these reasons, this appeal is dismissed.

The applicant, unrepresented, acting in person.