Re Marquez Trudiza Cayabas

CACV 228/2022

[2022] HKCA 1334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 228 OF 2022

(ON APPEAL FROM HCAL NO. 2676 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 by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 27 May 2022, by which the Deputy Judge granted extension of time to the applicant but refused to grant her leave to apply for judicial review (“the Leave Decision”) [1].

2.The intended judicial review is to challenge against the decision of the Non-Refoulement Claims Petition Office (“the Board”) dated 20 August 2018 (“the Board’s Decision”) dismissing the applicant’s petition against the decisions of the Director of Immigration (“the Director”) respectively dated 27 January 2016 and 20 July 2017 (collectively referred as “the Director’s Decisions”) rejecting her non-refoulement claim.

Background

3.The applicant is a national of the Philippines. She last arrived in Hong Kong on 17 July 2010 and was permitted to work as a domestic helper until 2 December 2011. She was later arrested by the police for theft on 18 November 2011 and was convicted and sentenced to 12 months imprisonment on 3 February 2012. By the written representations on 8 January 2012 and 29 March 2012 respectively, the applicant raised a torture claim, which was subsequently rejected by the Director on 24 August 2012. By a written representation dated 11 March 2014, she raised a non-refoulement claim on the basis that if she returned to the Philippines, she would face serious harm as she had been threatened by a barangay captain named Efren Marzan (“EM”) from the Ilocano tribe who was a wealthy ex-military officer and had good connection with the local government. She claimed that EM had threatened to kill her if she did not vote for him in the re-election for a new barangay captain. Factual details of the applicant’s claim were summarised by the Deputy Judge at [2] to [5] of the Leave Decision.

4.By a Notice of Decision dated 27 January 2016, the Director rejected the applicant’s non-refoulement claim. His decision covered all applicable grounds other than torture risk^[2], namely BOR3 risk^[3] and persecution risk^[4]. Taking into account all relevant circumstances, the Director considered that her non-refoulement claim was not substantiated. By a Notice of Further Decision dated 20 July 2017, the Director further rejected the applicant’s non-refoulement claim on the ground of BOR2 risk[5].

5.The applicant then filed a petition against the Director’s Decisions to the Board. She attended the hearing before the Board on 5 July 2018 and gave evidence. The Board dismissed her petition on 20 August 2018. The Board found that there was no evidence to substantiate her assertion that she was a human rights defender or activist[6]; or that she had been harassed because of her ethnicity or her acts in assisting villagers of her tribe[7]. The Board also found that there was no evidence to substantiate her assertion that she was adversely targeted by EM[8]. Equally, the Board considered that there was no evidence to substantiate her allegation that EM would kill her upon her return to the Philippines[9]. After perusing the medical documents of the applicant, the Board also accepted that the applicant had breast cancer illness[10].

6.Having assessed the evidence, the Board considered that there was no reliable evidence to substantiate the applicant’s account. The Board also did not accept that there would be a real risk that she would be ill-treated or at risk of arbitrary deprivation of life in her home country[11]. After considering the relevant Country of Origin information (“COI”), the Board found that state protection would be available to the applicant and that it would be feasible and reasonable for the applicant to seek medical treatment of her cancer illness in her home country[12]. Although the Board was of the view that the issue of internal relocation did not arise, in any event, if it were necessary to consider the issue, internal relocation alternatives would be available to the applicant[13]. Accordingly, the Board considered that the applicant failed to substantiate her case on all applicable grounds and dismissed her petition against the Director’s Decisions[14].

The Leave Decision

7.On 26 November 2018, the applicant filed her Form 86 and supporting affirmation applying for extension of time and leave to apply for judicial review against the Board’s Decision. As summarised at [11] of the Leave Decision[15], the applicant raised the following grounds for her intended challenge:

(1) Misdirection in law in that the Adjudicator misdirected himself on the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2) Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of her claim;

(3) Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of her claim;

(4) Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in the Philippines;

(5) Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in the Philippines and misdirected himself as to the extended meaning of state protection;

(6) Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7) Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8) Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision; and

(9) Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.

8.The Deputy Judge heard her application for extension of time and leave to apply for judicial review on 20 April 2022. A Tagalog interpreter was also present to provide language assistance.

9.By the Leave Decision, the Deputy Judge granted extension of time to the applicant but refused to grant her leave to apply for judicial review. His reasons were set out at [12] to [20] of the Leave Decision:

“12. By then the Applicant was also out of time with her application, as Order 53 Rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

13. As the last day of the three-month period for her to file her Form 86 fell on 20 November 2018, the Applicant was therefore some 6 days late with her application, but taking into account of the time for receiving the decision in the mail and that the Applicant no longer had legal representation from DLS, a delay of a few days in the circumstances cannot on any view be considered as significant, I therefore extended time for her application, and proceeded to consider those proposed grounds for her intended challenge.

14. These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in her case, or in what way was her legal representation from her assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, while the Adjudicator had never misdirected himself as to the required proof of torture as even on the Applicant’s own case that she had never been tortured by anyone in her home country. As such I do not find any of her proposed grounds reasonably arguable for her intended challenge.

15. 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.

16. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal.

17. Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her SCF, records of her screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation from DLS, whilst her SCF was completed on her own instructions with legal assistance, and the fact that she is capable of reading and understanding English having used and communicated in the language in her jobs and living in both Singapore and Hong Kong for years without problems, and that at her oral hearing she never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board either.

18. Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm from EM in her claim 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.

19. 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.

20. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

The Appeal

10.On 6 June 2022, the applicant filed a Notice of Appeal in support of her appeal against the Leave Decision. In her Notice of Appeal, she stated that:

“the grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal 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.” (sic)

11.Pursuant to the directions of the Registrar of Civil Appeal made on 28 June 2022, the applicant lodged her skeleton submissions on 22 July 2022. In those submissions, the applicant cited ST v Betty Kwan [16]and Secretary for Security v Sakthevel Prabakar [17] that high standards of fairness were required in the determination of a torture claim. The applicant further contended that the Board ought to have considered matters such as country conditions of the applicant’s country of origin and that the Board failed to scrutinise the Director’s decision. She further cited The Council of Civil Service Unions v Minister for Civil Service [18], Pearl Securities Limited v Stock Exchange of Hong Kong [19], and Michael John Treloar Rowse v Secretary for the Civil Service & Others [20]and contended that the decision maker was under a constitutional duty to act fairly. It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to her case. More importantly, none of her submissions identified any error in the Leave Decision.

12.We heard the appeal on 30 August 2022. A Tagalog interpreter was present to provide language assistance. At the hearing, the applicant confirmed that she had nothing further to add to her written submissions. Accordingly, we proceed to consider her appeal based on the written materials and submissions filed by the applicant before this Court.

Discussion

13.The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [21].

14.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. It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

15.Nowhere in her Notice of Appeal did the applicant identify any error made by the Deputy Judge in the Leave Decision. The matters raised in her skeleton submissions are all general and vague and only relate to complaints directed at the Board, which had been properly addressed in detail by the Deputy Judge in his reasons. The applicant has plainly failed to identify any error in the Leave Decision. The authorities cited by the applicant also do not assist her case. Clearly, the applicant’s assertions do not constitute proper grounds of appeal.

16.As there is simply no viable ground of appeal, the appeal ought to be dismissed on this basis alone.

17.Further, as seen from the Board’s Decision (together with the attached Schedule therein), the Board had considered and relied on updated and reliable sources of COI in making its Decision. Accordingly, those allegations made by the applicant in her Notice of Appeal plainly lack merit. In any event, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, COI and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. 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 Md Shohel Sheak [22] and Re Limbu Birkhaman [23]. As correctly noted by the Deputy Judge at [19] of the Leave Decision, there was no error of law or irrationality or procedural unfairness in the proceedings before the Board. We see no basis to interfere with the Leave Decision.

18.For the reasons given above, the applicant’s appeal has no merit. Accordingly, we dismiss the appeal.

The applicant, unrepresented, acting in person