Re Tovar Blanco Sabrina Thaibys

CACV 30/2023, [2023] HKCA 750

On Appeal From [2023] HKCFI 242

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 30 OF 2023

(ON APPEAL FROM HCAL NO 26 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the judgment of the Court):

1.This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  set out in the Form CALL-1 dated 31 January 2023, by which the Deputy Judge refused her application for leave to apply for judicial review (“the Leave Decision”)  ([2023] HKCFI 242).

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 21 December 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 31 August 2018 rejecting the applicant’s non-refoulement claim.

Background

3.The applicant is a national of Venezuela.  She last arrived in Hong Kong on 15 April 2018 and was permitted to remain as visitor until 14 July 2018.  She was then arrested by the police on 15 May 2018 for the offence of soliciting for immoral purpose, and was convicted of the said offence and were sentenced to six weeks’ imprisonment on 18 May 2018.  On 22 June 2018, she lodged a non-refoulement claim on the basis that she would be harmed or killed by Katiuska, for providing information regarding the operation of underground and illegal prostitution business to the police in Hong Kong.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] of the Leave Decision.

4.By a Notice of Decision dated 31 August 2018 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].  Taking into account all relevant circumstances, the Director considered that her non-refoulement claim was not substantiated.

5.The applicant then appealed against the Director’s Decision to the Board on 11 September 2018.  On 11 December 2018, the applicant attended the hearing before the Board in person and gave evidence.  Having assessed and considered the totality of the evidence, the Board considered that the applicant failed to adduce evidence showing that Katiuska threatened her family and that there was no evidence that Katiuska had ill-treated her or of any involvement of the state.  The Board further found that state protection and internal relocation would be available to the applicant.  Accordingly, the Board considered that the applicant had failed to substantiate her claim on all applicable grounds and dismissed her appeal.

The Leave Decision

6.On 4 January 2019, the applicant applied for leave to apply for judicial review against the Board’s Decision.  In her Form 86, the applicant did not state any ground of review.  In her supporting affirmation, she only stated that the decision made by the Board was not fair. As the applicant did not request for an oral hearing, the Deputy Judge considered and determined her application on paper.

7.By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out at [14] - [20] of the Leave Decision:

“14. 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).

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

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 reason stated in paragraph 13, supra is only the applicant’s opinion without any evidence in support and is not a 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.

CONCLUSION

20.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

The Appeal

8.On 3 February 2023, the applicant filed a Notice of Appeal in support of her appeal against the Leave Decision.  In the supplementary sheet attached to her Notice of Appeal, she merely stated:

“The followings are the grounds of this appeal:

1)  There is an error in the decision. The decision maker just relied on the Country of Origin Information (COI)  which favours the rejection of my claim. As the actual situation is different from the COI.

2)  The Immigration Officer and the judge High Court overlooked the evidence of violence towards the minorities. Also, the Board has significant relied on news the source of which is not officially recognized or is simply hearsay. The lack of credible information has result in groundless speculations.” (sic)

9.Pursuant to the directions made by the Registrar of Civil Appeals on 24 April 2023, the applicant lodged her written submissions on 9 May 2023.  In those submissions, she mainly repeated the factual basis of her non-refoulement claim.  She further claimed that her attackers were more powerful than the police and that there would be no guarantee that the police would solve her problems.  She asserted that her home country was corrupt and that government officials and authorities were afraid of those powerful gangsters.  She also asserted that the Director failed to conduct a sufficient inquiry of the relevant COI and to consider the issues of BOR3 risks and to give reasons.

Discussion

10.The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

11.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.

12.At the outset, all of the applicant’s allegations are vague, bare contentions unsupported by any specific particulars or evidence. Nowhere in her Notice of Appeal or written submissions did the applicant identify with specific particulars how the Deputy Judge had erred as a matter of law in reaching the Leave Decision.  Her complaints were mainly targeted at the Director’s Decision and not the Leave Decision.  In this regard, it is trite that the Director’s Decision was not susceptible to judicial review after the Board had reached a decision: see Re Moshsin Ali [2018] HKCA 549 at [45].  In any event, her complaints were wholly misplaced as the Deputy Judge had carefully considered the Board’s Decision and found no error of law, procedural unfairness or irrationality in that decision: see Leave Decision at [18].  Accordingly, her submissions are plainly not proper grounds of appeal.

13.Further, general assertions of her fear if refouled do not constitute proper grounds of appeal: see Re Farrukh Zaib [2020] HKCA 408 at [28].  More importantly, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, Country of Origin Information 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 [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].

14.At the hearing of this appeal, the applicant further submitted that she understood that her case might not be very strong but she just wanted to be given more time to stay in Hong Kong, so that she could resolve her problems before she could return to her country.  However, for the above reasons, these similarly do not constitute any proper grounds of appeal against Leave Decision.

15.Accordingly, we see no basis to interfere with the Leave Decision.  The appeal has no merit and we dismiss it.

The applicant appeared in person