Cabornay Evelyn Quinawayan v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

CACV 285/2022

[2022] HKCA 1652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 285 OF 2022

(ON APPEAL FROM HCAL 685 OF 2019)

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Before:  Hon Chow JA and K Yeung J in Court

Date of Hearing: 24 October 2022

Date of Judgment:  14 November 2022

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J U D G M E N T

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Hon K Yeung J (giving the Judgment of the Court):

1.The is an appeal[1] against the decision of Deputy High Court Judge KW Lung given on 21 July 2022 refusing leave to the Applicant to apply for judicial review (the “Judge” and the “Judge’s Decision”). The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 4 March 2019 (the “Board”, and the “Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration dated 11 June 2018 rejecting the applicant’s non-refoulement claim (the “Director”, and the “Director’s Decision”).

Background

2.The Applicant is a national of the Philippines.  She had been working in Hong Kong as a foreign domestic helper.  Her employment contract was terminated prematurely on 20 October 2017.  She did not depart, but overstayed instead from 4 November 2017.  On 8 November 2017, she surrendered herself to the Immigration Department.  She subsequently lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by members of a guerrilla group called the New People’s Army (“NPA”) because she had betrayed them and revealed their hideout to the Philippines military in 2003.  Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form.

3.By Notice of Decision dated 11 June 2018, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[2], BOR 2 risk[3], BOR 3 risk[4], and persecution risk[5].

4.The Applicant appealed against the Director’s Decision. On 4 March 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision.

5.The Board considered the Applicant’s oral evidence and the relevant country of origin information (“COI”).  The Board observed that no independent evidence had been produced to support her case.  The Board observed further that aspects of the Applicant’s evidence were “absolutely against common sense” and “unreasonable”.  The Board had grave doubt as to the Applicant’s credibility.  Her evidence was rejected. In any event, the Board found that effective state protection and reasonable and safe internal relocation were available and possible.

The Judge’s Decision

6.On 11 March 2019, the Applicant filed her Form 86 and affirmation in support for leave to apply for judicial review against the Board’s Decision. 

7.The Applicant has failed to specify any ground for relief in either document.

8.For reasons set out in the Form CALL-1 of 21 July 2022, the Judge refused to grant leave to the Applicant to apply for judicial review.  The main reasons are as follows:

“14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15. 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16. 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.”

17. The applicant has raised no valid ground to challenge the Board’s Decision.

18. 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.

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

9.Accordingly, the Judge dismissed the Applicant’s leave application.

Grounds of appeal, and the appeal

10.In her Notice of Appeal dated 26 July 2022, the Applicant seeks an order that the Order of the Judge dismissing her leave application be set aside, and that leave to apply for judicial review be granted.

11.The Applicant has put forward three grounds: (1) the Judge has failed to consider all applicable grounds for non-refoulement claims, and in particular Articles 2 and 22 of the Hong Kong Bill of Rights Ordinance; (2) the findings of the Judge that the Board’s Decision was without fault were irrational; and (3) the Judge was wrong in accepting the Board’s finding that “the only fact established is that the applicant is a Philippines female, she faces no risk of any harm at all” to conclude that the persecution risk failed.

12.In her 4-page written submissions, the Applicant has only recited a number of authorities and made some generic submissions on the general principles of law relevant to non-refoulement claims.  She has not otherwise dealt with the facts of her case in any way.

13.During the oral hearing, the Applicant only added that until there are peace negotiations between the Government and the NPA, she cannot tell whether it would be safe for her to go back.  She also claimed that there are still members of the NPA in the areas where she used to live.

Discussion

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.  The court’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)).

15.All the grounds the Applicant puts forward lacks particulars and specificity, and have no merits:

(a)  All the grounds for non-refoulement have been addressed by the Judge in the light of the evidence;

(b)  The Applicant has failed to give particulars as to why Article 22 of the Bill of Rights is engaged, or why she has not been treated equally or not offered equal protection of the law;

(c)  In general, the assessment of evidence, COI materials, 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.

(d)  The Board was entitled to reject the Applicant’s evidence.  The Applicant has provided no reason for her allegation that the Judge’s acceptance of the Board’s findings is irrational or otherwise wrong, and we can see none.

16.The Applicant’s grounds of appeal have no merits.  

17.We dismiss the Applicant’s appeal.

The Applicant, acting in person.

[1]  By Notice of Appeal filed on 26 July 2022.

[2]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3]  This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5]  This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.