Celis Leonora Sacor v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

CACV 351/2022

[2023] HKCA 22

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 351 OF 2022

(ON APPEAL FROM HCAL NO 2183 OF 2018)

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BETWEEN

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J U D G M E N T

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

1.On 11 August 2022, Deputy High Court Judge K W Lung refused to grant leave for the Applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”)  concerning her non-refoulement protection claim[1]. The Applicant file a Notice of Appeal against the said decision on 30 August 2022[2].

2.The Applicant is a national of the Philippines.  She is 46 years old[3]. She last entered Hong Kong as a foreign domestic helper on 9 July 2014.  After her employment contract was terminated prematurely on 9 November 2015, she did not leave Hong Kong and subsequently overstayed.  On 19 January 2016, she surrendered to the Immigration Department.  On 14 April 2016, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her husband and her creditor.

The Director’s decision

3.By a Notice of Decision dated 1 September 2017, the Director of Immigration (“the Director”)  rejected the Applicant’s non-refoulement claim on all applicable grounds including torture risk[4], BOR 2 risk[5], BOR 3 risk[6] and persecution risk[7]. 

4.In the absence of ill-treatment by the Applicant’s husband and creditor in the past, the Director found that there is no substantial ground to believe that the Applicant would be in danger of being harmed or killed by her husband and her creditor upon her return to the Philippines and assessed that the future risk of harm is small[8].  The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk[9] .

The Board’s decision

5.The Applicant’s appeal against the Director’s decision was heard before the Board on 10 July 2018.  In view of the significant inconsistences in the Applicant’s evidence and her failure to provide reasonable explanation, the Board did not accept that the Applicant has taken out any loan and did not accept that her husband, his family members or relatives intended to harm or kill the Applicant[10]. The Board found that there is no real risk of the Applicant facing any harm, arrest, charges or punishment if she returns to the Philippines[11].  Thus, the Board rejected the appeal on 7 September 2018.

The intended judicial review

6.The Applicant filed a Form 86 and an affirmation on 10 October 2018 to seek leave to apply for judicial review against the decision of the Board.  The Applicant stated in her supporting affirmation that she cannot go back to her country because it is dangerous for her[12].

The judge’s decision

7.DHCJ K W Lung dealt with the application on paper as the Applicant did not request for an oral hearing[13]. 

8.The judge considered that the Applicant did not have any valid reason to challenge the Board’s decision and held that there is no error of law or procedural unfairness in the Board’s decision.  As the Applicant failed to show any realistic prospect of success in her intended judicial review, the judge dismissed the leave application on 11 August 2022.

Grounds of appeal

9.In the Notice of Appeal filed on 30 August 2022, the Applicant stated that she found many errors in the Board’s decision but the court did not find any error so she wants to show some errors to the Court of Appeal to obtain leave to apply for judicial review.

Non-compliance with order for lodging of skeleton argument

10.Directions were given by the Registrar of Civil Appeals on 7 October 2022 for the Applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the Applicant fails to lodge skeleton argument in accordance with the directions, she shall be deemed to waive her right to have an oral hearing for this appeal and elect to have this appeal disposed of on paper.  The Registrar has also made it clear that the hearing date fixed shall be vacated under such circumstances and the Court of Appeal shall proceed to consider this appeal on paper only without further notice.

11.The appeal was scheduled to be heard on 4 January 2023.  The Applicant failed to lodge skeleton argument by the prescribed deadline on or before 7 December 2022.  As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto. The court informed the Applicant that the hearing date has been vacated and that this appeal will be dealt with on paper by the Court of Appeal by letter dated 19 December 2022.

Legal Principles

12.The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

13.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, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

14.The Applicant stated that she found many errors in the Board’s decision but failed to identify any of the particular errors.  Her ground of appeal is just bare assertion without any basis.  She failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. 

15.Therefore, the appeal is devoid of merit and should be dismissed.

The Applicant (Appellant), acting in person