Re Bernabe Jacqueline Asuncion

CACV 397/2022

[2022] HKCA 1735

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 397 OF 2022

(ON APPEAL FROM HCAL NO. 613 of 2019)

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JUDGMENT

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Hon Chu VP (giving the Judgment of the Court):

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 16 September 2022 ([2022] HKCFI 2868) refusing her leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 14 January 2019 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 18 April 2018 rejecting her non-refoulement claim.

2.The applicant has consented to her appeal being determined on paper without an oral hearing.

3.Despite the directions given by the Registrar for Civil Appeals, the applicant has not put in any written submission to support the appeal.

4.The applicant is a national of the Philippines aged 58. She had worked as a foreign domestic helper in Hong Kong. She last arrived on 7 February 2015 and was given permission to remain until 7 February 2017 or two weeks after termination of contract. When her contact was terminated on 4 March 2015, she did not leave and overstayed. On 8 March 2016, she surrendered to the Immigration Department and raised a non-refoulement claim.

5.The applicant’s claim is based on her fear of being harmed or killed by her sister-in-law, her son and their gangster associates in connection with a property fraud, and also the creditors of the applicant’s son due to unpaid loans. The applicant’s case was set out in detail in the Director’s decision at [8] and also the Board’s decision at [26] to [33], and summarised by the Judge in [2] to [6] of the Form CALL-1 dated 16 September 2022.

6.In gist, the applicant claimed that she had financed her son to buy a plot of land from her brother and his wife. In 2015, and after her brother’s death, the applicant returned to the Philippines. Her sister-in-law said her son had not made the full payment and demanded her to pay the balance. The applicant’s sister-in-law is from a politically powerful and influential family, which is well connected to the police and gangsters. She threatened to kill the applicant if she did not pay the unpaid balance or return the land. After enquiries, the applicant found out that her son had gambled away the remittances she made, and had further incurred substantial debts. His creditors threatened the applicant to make the repayments for her son. Fearing for her personal safety, she returned to Hong Kong to resume working as a foreign domestic helper.

7.By a Notice of Decision dated 18 April 2018, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], the BOR 3 risk[2], the BOR 2 risk[3] and the persecution risk[4].

8.The applicant appealed the Director’s decision to the Board. An oral hearing was held on 12 November 2018, during which the applicant answered questions put by the Board. By its decision dated 14 January 2019, the Board dismissed the appeal. In short, the Board did not find the applicant’s claims entirely credible and considered they had been largely fabricated or at the very least grossly exaggerated, having regard to the fact that the applicant’s case had changed considerably over time, and her evidence was inconsistent with her written claim in salient aspects. Giving the applicant the benefit of the doubt, it was prepared to accept that her son had deceived her, squandered the money she sent home, did not make full repayment to her sister-in-law, had mortgaged the property and defaulted on the mortgage. The Board, however, held that the applicant had no obligation to repay the debt as she was not a party to the contract. The Board was not satisfied that any threat made to the applicant was serious or she faced any risk of harm from her sister-in-law or her family, or her son or his creditors if she were to return home. The Board concluded that the applicant was not entitled to non-refoulement protection under any of the applicable grounds.

9.The applicant filed his Form 86 together with a supporting affidavit on 5 March 2019 to seek leave to apply for judicial review against the decisions of both the Director and the Board. Neither the Form 86 nor the supporting affidavit set out any ground for seeking relief.

10.The Judge dealt with the application on paper. By his decision of 16 September 2022, the Judge refused to give leave to apply for judicial review as he considered the intended judicial review had no prospect of success. He gave his reasons given at [12] to [14] of the Form CALL-1 as follows:

“12. 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.

18. In the Applicant’s case, the fact is that it has also been established by both the Director and the Board in their respective decisions 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.

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.”

11.In the Notice of Appeal filed on 30 September 2022, the applicant stated the following as her grounds of appeal:

“I would like to reject and review the decision made by the Torture Claims Appeal Board on my non-refoulement case. They disregard my dangerous situation should I return to my home country.”

12.The matters put forward by the applicant do not amount to viable grounds of appeal. The focus of an appeal in the Court of Appeal is the correctness of the decision in the court below. The Court of Appeal will only interfere with a refusal to grant leave to apply for judicial review if the appellant can demonstrate that the judge had made errors of law or failed to take into account relevant matters, or was otherwise plainly wrong: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(2)].

13.In the present case, the applicant has not identified any error in the Judge’s decision and reasons. In light of the Board’s finding that she has fabricated, or at the very least exaggerated, most of her claims and that she does not face any real risk of harm from the people she claims to be in fear of, the applicant’s assertion that she would be in danger if refouled to the Philippines cannot stand. We have separately considered the Board’s and the Judge’s decision; we do not discern any proper basis to interfere with the Judge’s refusal to grant leave to apply for judicial review.

14.For the above reasons, the appeal has no merits. Accordingly, we dismiss the appeal.

The applicant, unrepresented, acted in person.