Renido Antonio B Alias Renido Antonio Balaswit v. Torture Claims Appeal Board / Non Refoulement Claims Petition Office

CACV 205/2022

[2022] HKCA 1236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 205 OF 2022

(ON APPEAL FROM HCAL NO 756 OF 2019)

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Before:  Hon Chow JA and Ng J in Court

Date of Judgment:  20 September 2022

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J U D G M E N T

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

1.On 18 May 2022, the Applicant, who is acting in person, filed a notice of appeal against the decision made by Deputy High Court Judge K W Lung (“the Judge”) on 13 May 2022 refusing 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 8 March 2019. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 15 March 2018.

Background

2.The Applicant is a national of the Philippines. She entered Hong Kong in 1993 as a foreign domestic helper. However, there was no immigration record of the Applicant since 2005. On 6 June 2016, she surrendered to the Immigration Department and claimed that she had overstayed in Hong Kong since 2005. On 9 March 2017, she lodged a non-refoulement claim, on the basis that, if refouled, she would be harmed or killed by her creditor. Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form.

3.By a Notice of Decision dated 15 March 2018, the Director dismissed 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 against the Director’s decision. On 8 March 2019, the Applicant’s appeal was dismissed by the Board, and the Board confirmed the Director’s decision (“the Board’s Decision”).

5.The Board considered the Applicant’s evidence to be inconsistent and lacked objective proof and noticed that her manner in giving evidence at the oral hearing of her appeal was evasive and unforthcoming. It identified several matters that were inconsistent with the objective information and devoid of common sense. As to the debt, the Applicant stated that she no longer knew the whereabouts of her creditor or whether he was still alive. The Board also scrutinized the alleged debt in detail and concluded that the alleged sum and the alleged failure to repay were unsubstantiated. Accordingly, her claim for non-refoulement protection failed on all applicable grounds.

The Judge’s decision

6.On 19 March 2019, the Applicant filed her Form 86 against the Board’s Decision.

7.On 13 May 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“15. The applicant has not been able to raise any valid ground to challenge the Board’s Decision.

16. 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.

17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

8.Accordingly, the Judge refused to grant leave to apply for judicial review and dismissed the Applicant’s application.

This Appeal

9.In her Notice of Appeal dated 18 May 2022, the Applicant requested to set aside the Order dated 13 May 2022 by the Judge and that leave to apply for judicial review be granted.

10.In her grounds of appeal, the Applicant simply stated that she wanted to challenge the decision.

11.The Applicant has failed to lodge a skeleton argument in support of her appeal in accordance with the directions of the Registrar of Civil Appeals given on 13 June 2022. Accordingly, she is deemed to have waived her right to have an oral hearing of the appeal, and the appeal shall be considered on paper only.

Discussion

12.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)).

13.The Applicant has not raised any viable grounds of appeal against the Judge’s decision dated 13 May 2022 in her Notice of Appeal by simply saying she wanted to challenge the decision.

14.Accordingly, the Applicant’s appeal has no merits, and is dismissed with no order as to costs.

The Applicant, acting in person