Re Puzon Martin Jr Sulio

CACV 223/2024, [2024] HKCA 911

On Appeal From [2024] HKCFI 792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 223 OF 2024

(ON APPEAL FROM HCAL NO 1287 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 the applicant’s appeal against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 31 May 2024 ([2024] HKCFI 792)  (“the Leave Decision”)  refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 21 August 2019 (“the Board’s Decision”), whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 22 February 2019 (“the Director’s Decision”)  refusing his non-refoulement claim.[1]

2.We heard the appeal on 25 September 2024.  After the hearing, we reserved our judgment to be handed down in writing.  This is what we do now.

BACKGROUND

3.The applicant is a national of the Philippines.  He entered Hong Kong on 14 July 2017 as a visitor and was permitted to stay until 28 July 2017.  However, he did not depart and had overstayed.  On 21 August 2018, he surrendered to the Immigration Department.  On 12 September 2018, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by the creditor.  Details of the applicant’s claim were summarised by the Judge at [5] - [6] of the Leave Decision.

4.By the Director’s Decision, the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR2 risk[3], BOR3 risk[4], and persecution risk[5].

5.The applicant appealed the Director’s Decision to the Board.  On 12 July 2019, the applicant attended an oral hearing and gave evidence before the Board with the assistance of an Ilocano interpreter.  By the Board’s Decision, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [9] - [11] of the Leave Decision:

“9. The applicant appealed the Director’s Decisions to the Board. On 12 July 2019, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [35].

10. The Board recapped the applicant’s case [39]-[60] and his oral testimonies [61]-[89]. Having considered the evidence, the Board accepted the applicant’s core claims. During the hearing, the Board inquired about the possibility of relocating to other part of the country. The applicant stated that it would be possible for him to move but he would be unable to support his children if he had to keep hiding [88].

11.  The Board found that the applicant’s claims were true [93] and proceeded to consider the possibility of internal relocation [94]. It found that internal relocation was available to the applicant and his concern of not being able to support his children was not sufficient to warrant a non-refoulement protection [95]-[102]. As a result, the Board rejected the applicant’s claim for non-refoulement protection and dismissed his appeal.”

THE JUDGE’S DECISION

6.On 14 May 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review against a decision dated “14 March 2019”, which was taken as the Board’s Decision by the Judge.  He gave no ground of review in his Form 86 or supporting affidavit.

7.An oral hearing was scheduled to be heard before the Judge on 24 April 2024, but the applicant was absent without giving any prior notice to the court.  The Judge proceeded to consider his application on paper and refused to grant leave to apply for judicial review.  His reasons were stated at [13] - [19] of the Leave Decision:

“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 Decision should be examined with rigorous examination and anxious scrutiny.

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 had considered the applicant’s case, and for the reason of internal relocation being viable, upheld the Director’s Decision.

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

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

CONCLUSION

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

THIS APPEAL

8.In his Notice of Appeal filed on 4 June 2024, the applicant stated:

“I am disagree with the decision maker authorities. They were totally unfair to me. Director of Immigration and the Adjudicator of Torture Claim Appeal Board to reject all my evidence. I do not think my case determined fairly.” (sic)

9.Pursuant to the directions of the Registrar of Civil Appeals dated 30 July 2024, the applicant lodged his written submissions on 19 August 2024.  In those submissions, he stated that he disagreed with the Director’s Decision and the Board’s Decision and that his case had not been treated fairly.  He also complained that the lack of language and legal assistance deprived his right to make full grounds for his appeal and that the Board’s Decision was never read to him in his own language.  He further alleged that the Judge failed to appreciate the significance of his non-refoulement claim and that there had been procedural unfairness, error of law and unreasonableness and the authorities had been discriminatory towards non-refoulement claimants.

10.We heard the appeal on 25 September 2024.  A Tagalog interpreter was present to provide language assistance.  During the hearing, he confirmed that he had nothing to add to his written submissions.

DISCUSSION

11.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, 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’s decision, the appeal should be dismissed.  The court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

12.Further, the assessment of evidence, Country of Origin information, 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: Re Kartini [2019] HKCA 1022.

13.In our view, the applicant’s allegations have no substance. From the outset, all his allegations are new and not raised before the Judge. He fails to give any reason as to why these grounds are only raised on appeal and not before the Judge.  It is well established that this court generally will not entertain new arguments which are fact-and-evidence sensitive and have not been canvassed in the court below and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14] and Re Gurpreet Singh [2021] HKCA 1740 at [15].  Further, the applicant’s complaints are also general and bare assertions without any specific particulars or evidence in support.  More importantly, those complaints are directed mainly at the decisions of the Director and the Board and he fails to point out with particulars how the Judge erred in the Leave Decision.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. The grounds of appeal do not constitute proper grounds of appeal.  His intended appeal must fail on this basis alone.

14.Further and in any event, neither Sakthevel Prabakar v Secretary for Security (2004)  7 HKCFAR 187 nor FB v Director of Immigration HCAL 51/2007 prescribe that a non-refoulement claimant must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas[2018] HKCA 15 at [11]; Re Tariq Farhan[2018] HKCA 17 at [11] and Re Lopchan Subash[2018] HKCA 37 at [13].  The applicant had free legal assistance in relation to the assessment of his non-refoulement claim by the Director.  Although he had no legal representation before the Board and the Judge, the assessment of his non-refoulement claim by the Board and the consideration of his application for leave to apply for judicial review by the Judge were thorough and fair.  We consider that a high standard of fairness has been achieved in the overall process of the determination of his non-refoulement claim.

15.Moreover, it is trite that the high standard of fairness required by law does not entail an interpretation service being made available to an applicant at all the times as he desires: see Cucun Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20].  We note that the court documents filed in this appeal and in the court below are all in English.  It is thus clear that either the applicant is himself conversant with the English language or he has had access to language assistance of his own if he found it necessary to obtain it.  We see no prejudice suffered by the applicant from the alleged lack of legal and language assistance.

16.In any event, we have considered the Leave Decision carefully and are unable to see any arguable ground of appeal against the decision.  We see no basis to disturb the Leave Decision.

17.The applicant’s appeal against the Leave Decision has no merit and is dismissed.

The applicant appeared in person