Sebiano Dondie Valdez v. Torture Claims Appeal Board

CACV 175/2024, [2024] HKCA 908

On Appeal From [2024] HKCFI 1187

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 175 OF 2024

(ON APPEAL FROM HCAL NO 1578 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 2 May 2024[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 3 June 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 31 December 2018 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of the Philippines born in 1989.  He last entered Hong Kong as a visitor on 28 October 2017 and was permitted to remain until 11 November 2017. The applicant overstayed and surrendered to the Immigration Department on 25 June 2018.  He lodged his claim for non-refoulement protection by way of written representations on 19 July 2018 and 10 August 2018 and his completed non-refoulement claim form was dated 27 November 2018.  The applicant’s claim was made on the basis that if he returned to the Philippines, drug gangsters would harm or kill him because he witnessed their murder of his friend (Efler Locloc).  The factual background of the applicant’s claim was set out at [6(a)] to 6(h)] of the Board’s decision.

3.By notice of decision dated 31 December 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  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 15 April 2019, during which the applicant gave evidence and answered questions from the Board.  In favour of the applicant’s credibility, the Board accepted that the applicant had experienced a major traumatic event, i.e. witnessing the murder of his friend, and that it was plausible the applicant was threatened and frightened.  However, the Board did not accept that the applicant continued to receive threats after around December 2016.  On overall assessment of the internal coherence and consistency of his evidence, the Board found that the applicant was not a witness of truth and that he had either embellished or exaggerated his claims.  The Board made this finding based on the inconsistencies between his previous statements and his oral submissions in relation to the events that occurred after the death of his friend, to being attacked in his home, and to ongoing threats against him.

5.The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to the Philippines.  It found there was in fact no real risk of harm if the applicant returned to the Philippines, because the applicant’s ongoing fear of the drug gangsters was subjective, the COI showed that there were initiatives to crack down on drugs by the police and there were mechanisms to provide checks and balances to government and police corruption.  State protection would be available to the applicant, and it would be safe for him to live either at his home or elsewhere 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 3 June 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 10 June 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.  He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, he stated that he was not satisfied with the Board’s decision because of the Board’s factual findings on internal relocation, state protection, and inconsistencies in his evidence with particulars.   He further annexed the Board’s decision and the hearing bundle prepared for the hearing before the Board.

8.The Judge considered the application on the basis of the documents alone as the applicant had not requested for an oral hearing.  On 2 May 2024, 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. On 10 June 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in his Form or his supporting affirmation of the same date in which he just repeated his claim as before but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12. 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.

13. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, there is simply no justification to afford him 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, I therefore refuse to grant leave and accordingly dismiss his leave application.”

Appeal to this Court

9.On 6 May 2024, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that he disagreed with the decision maker, there were some errors made by the decision maker, his case was not determined fairly and it was totally unfair to him.

10.The applicant has lodged written submissions in which he stated that he disagreed with the decision of the Director and the Board, that his case was not determined fairly, that he was deprived of his right to put forth his full ground for appeal as the determination was not translated for  him, that the lack of assistance provided to him should be viewed as an error of law or procedure or procedural unfairness, that he did not know how his case was determined so he could not easily appeal against the decision, that the lack of legal and language assistance amounted to procedural unfairness, that there was discrimination against non-refoulement claimants on the basis of quick disposal of non-refoulement cases, and that the Board’s decision to refuse the appeal was unreasonable, irrational or procedurally unfair.  No particulars of these allegations were however provided by the applicant.

11.At the hearing, the applicant stated that he had nothing to add to what was already contained in the papers before the court. We shall accordingly determine the appeal on the basis of the available documents, materials and evidence. 

Discussion

12.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.

13.In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant was not a witness of truth overall, his fear was subjective, state protection would be available to him, and he could live either at his home or elsewhere in the Philippines.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  The applicant’s proposed grounds of appeal are mainly complaints against the Board’s findings of fact.  The applicant has failed to show any reasonably arguable ground for saying that the Board’s decision should be impugned due to public law errors.

14.As to the complaints about lack of language and legal  assistance, it has been repeatedly stated by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  We note that all the Court documents filed in this appeal and in the Court below were in English.  It is thus clear that either the applicant was himself conversant with the English language or he had access to language assistance of his own if he found it necessary.  Further, we note that the applicant was legally represented in the initial preparation of his case by the completion of the non-refoulement claim form and in the screening interview with the Director, which formed the basis of his claim.  We do not find the non-availability of legal representation in the processes before the Board or the court to amount to any procedural unfairness.

15.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.

16.The applicant’s appeal is accordingly dismissed.

The Applicant appeared in person