Banglayan Betty Malecdan v. Torture Claims Appeal Board

CACV 313/2023, [2024] HKCA 80

On Appeal From [2023] HKCFI 2531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 313 OF 2023

(ON APPEAL FROM HCAL NO 289 OF 2019)

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BETWEEN

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 5 October 2023[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 18 January 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 29 March 2018 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of the Philippines born in 1985. She entered Hong Kong as a visitor on 17 August 2015 and was permitted to stay until 31 August 2015. She overstayed and was arrested by police on 22 September 2015. The applicant raised non-refoulement claim by way of written representation on 5 October 2015 and by non-refoulement claim form dated 2 March 2018. The applicant’s claim was made on the basis that if she returned to the Philippines, her boyfriend named Philip Castro and his people would harm or kill her, due to the fear that she would report his illegal drugs activities to the police. The factual background of the applicant’s claim was set out at [29] to [49] of the Board’s decision.

3.By notice of decision dated 29 March 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against her. Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 19 October 2018, during which the applicant gave evidence and answered questions from the Board. At the oral hearing, the applicant was unable to tell the Board basic details about the political position of her boyfriend’s father or his connections with any politicians, and she recalled incidents and events regarding her personal experience that were of a different timeline to what she had previously claimed in her written non-refoulement claim form. The Board found that there were many discrepancies in the timing of events, such as whether her boyfriend had proposed to her over telephone when she was working in Singapore or in person after she returned from Singapore in around June 2014; when she became suspicious that her boyfriend used and dealt with drugs; whether she was assaulted from time to time and eventually detained by her boyfriend in around August 2014 or June 2015; and whether she hid at her sisters’ homes for a few days as opposed to 9 months. The applicant explained the discrepancies were due to her misunderstanding or misreading the papers. The Board found against the applicant’s credibility, as it did not accept that she was a witness of truth and found her claims to be implausible.

5.The Board proceeded to consider the risk of harm faced by the applicant if she was refouled to the Philippines. It found that there was in fact no real risk of harm if the applicant returned to the Philippines, because it did not accept any aspect of her claims. The Board did not accept that the applicant was ever engaged to her boyfriend, that she had ever moved in with him, that she discovered and confronted him on usage or dealing with drugs, that he was consequently abusive towards her, that he locked her up in his house, that she made an escape and fled to her sisters’ homes in fear of her boyfriend, or that he was in continuous pursuit of her. As the Board did not accept the fundamental basis of the applicant’s claim, it did not consider or make any findings in relation to internal relocation or availability of police protection in the Philippines.

6.In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to the Philippines. By its written decision dated 18 January 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.On 30 January 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. She did not specify any ground for judicial review in the Form 86. In the accompanying affirmation, she stated that she was not happy with the decision of the Director and that she could not go back to her country because her life was in danger and she annexed a letter to the court and the Board’s decision. The letter presumably contained her grounds of complaint against the Board’s decision, which consisted of her explanation for the discrepancies in the timeline of events in her claims and of the basis of her claim for non-refoulment protection. As a new ground, she claimed that she married a Muslim man and converted to Islamic religion, resulting in her boyfriend threatening to kill her and her family’s unacceptance of her new religion.

8.An oral hearing was held on 12 September 2023. Apart from the available documents, the applicant confirmed that she had nothing further to address the court in relation to her application. The Judge considered the application on the basis of the documents alone as the applicant had no further oral submissions. On 5 October 2023, the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out in [11] to [15] of the Form CALL-1 as follows:

“ 11. 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.

12. In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 50 – 64 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13. The fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, a decision also confirmed by the Board, there is simply no justification to afford the Applicant with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. 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.

15. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly refuse her leave application.”

Appeal to this Court

9.On 11 October 2023, the applicant filed her Notice of Appeal against the Judge’s decision. Her two stated grounds of appeal were that the Judge failed to consider she would not be safe or survive in her home country and that the Judge failed to consider COI to show that she would not be safe in her country.

10.The applicant did not lodge any written submissions. As such, the hearing of her appeal was vacated pursuant to the Court’s directions and we shall accordingly determine the appeal on the basis of the available documents and materials.

Discussion

11.In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

12.In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it did not find any of the fundamental bases of the applicant’s claims to be credible. Therefore, the Board concluded that it was not necessary to consider or make further findings in relation to internal relocation or state protection. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. As to the grounds of appeal raised in the Notice of Appeal, they consist of mere general and bald assertions regarding the decision of the Judge without any particulars. They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

13.The applicant’s claimed marriage to a Muslim man and conversion to Islamic religion is a new ground that does not appear to have been properly raised (save for the assertion in the letter annexed to her affirmation) or considered in the court below. She did not provide any particulars of when the marriage took place or when she received any threats from her ex-boyfriend. The Court of Appeal has a discretion, not to be exercised lightly, to allow new grounds to be canvassed in the interest of justice: see for example, Re MD Zahidur Rahman Manik [2018] HKCA 766 at [13]. In light of the Board’s finding on the applicant’s credibility and the lack of particulars, we are of the view that there are no special circumstances that should incline this Court to consider this new ground.

14.Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision. We are not satisfied that there is any error in the Judge’s decision.

15.The applicant’s appeal is accordingly dismissed.

The Applicant, unrepresented, acting in person