Re Akinchang Benedicta Balingao

CACV 43/2024, [2024] HKCA 512

On appeal from [2024] HKCFI 286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 43 OF 2024

(ON APPEAL FROM HCAL 1973 OF 2019)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”)  given on 30 January 2024 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 5 July 2019 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 30 January 2018 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of the Philippines. She last entered Hong Kong as a foreign domestic helper, but she overstayed after the premature termination of her employment, and was convicted of a separate offence on 30 June 2015 (for which she was imprisoned for 15 months). She thereafter raised a non-refoulement claim by way of written submissions dated 2 November 2015. 

3.The applicant’s claim was based on a fear of being harmed or killed by her creditor because she was unable to repay a debt. The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of the Judge’s decision (“the CALL-1 Form”)[1].

4.By a Notice of Decision dated 30 January 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.The applicant appealed against the Director’s Decision to the Board, for which an oral hearing was held on 18 January 2019 and at which the applicant appeared in person.  The Board found that there were “serious credibility problems” with the applicant’s evidence (see [88] of the Board’s Decision)  and that there was no real risk of harm should the applicant be refouled.  In any event, the applicant may suitably be relocated to areas such as Manila or Cebu, where the risk of harm (if any)  would be reduced.  The applicant’s appeal was dismissed by the Board’s decision dated 5 July 2019 (i.e. the Board’s Decision).

The Judge’s decision

6.The applicant filed a Form 86 on 12 July 2019 seeking to judicially review the Board’s Decision, but did not set out any grounds for review.  In her supporting affidavit filed on the same date, the applicant merely stated that she wished to “reject” the Board’s Decision.

7.After summarising the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [13] to [19] of the CALL-1 Form: 

“13. 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).

14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said she did not receive the Board’s written decision. After the Court had explained the Board’s Decision to her, she requested for more time to stay in Hong Kong.

15. 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.’

16. The Board found that the applicant failed to show that she will be subjected to any real risk as she alleged if she returns to the Philippines. From the evidence, the Board was entitled to form such views.

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

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

CONCLUSION

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

Grounds for appeal

8.In the Notice of Appeal filed on 5 February 2024, the applicant set out her grounds of appeal, which are essentially that:

(1)  the Judge failed to consider that the Board had failed to properly inquire “into the Country of Origin Information”;

(2)  the Director failed to consider a “fact” she had raised in her claim.

9.In her written submissions dated 18 April 2024, insofar as relevant to this appeal, the applicant repeated her complaints against the Director and the Board, and contended that the Judge “did not focus on [her] fear for which [her] life would be at (sic)  danger”.

10.We heard the appeal on 28 May 2024.  The applicant appeared at the hearing but had nothing to add to the matters already stated in her Notice of Appeal and written submissions.

Discussion

11.The applicant has in the Notice of Appeal failed to identify, with particularity, any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

12.In the application in the court below, the applicant provided no particulars as to any respects in which the Board was unreasonable or unfair in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

13.As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

14.There is therefore no merit in the appeal and we dismiss the appeal accordingly.