Re Sampayan Bernard Ablao

CACV 252/2024, [2025] HKCA 31

On Appeal From [2024] HKCFI 1516

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 252 OF 2024

(ON APPEAL FROM HCAL 1665 OF 2019)

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J U D G M E N T

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Hon Cheng J (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 18 June 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 10 June 2019 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 30 August 2018 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

2.The applicant also filed a summons on 21 August 2024 (with a supporting affidavit dated the same)  for an extension of time to lodge a sealed copy of the order made by the Judge on 18 June 2024 pursuant to O.59 r.5(1)(a)  of the Rules of the High Court, Cap.4A.  In the summons and the affidavit, the applicant explained that he did not lodge the order on time because he did not have it at the time he filed the present Notice of Appeal on 25 June 2024.  However, the applicant did not explain on which date he actually received a copy of the sealed order, nor the reasons behind the delay of around 7 weeks, which is not insignificant.  On this occasion, however, we are prepared to grant the applicant an extension of time in this regard, and we therefore proceed to determine the applicant’s substantive appeal.

Background

3.The applicant is a national of the Philippines.  He entered Hong Kong on 11 October 2017 as a visitor, but he overstayed and he surrendered to the Immigration Department on 9 November 2017. Thereafter, he lodged a non-refoulement claim by way of written significations dated 9 November 2017 and 3 January 2018.

4.The applicant’s claim was based on a fear of being harmed or killed by men who had allegedly left, and requested the return of, drugs from the applicant.  The applicant also fears being falsely charged or arrested by the Filipino police for dealing in drugs.  The details of the applicant’s claim have been summarised by the Judge at [4] to [10] of the Judge’s decision (“the CALL-1 Form”)[1].

5.By a Notice of Decision dated 30 August 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].

6.The applicant appealed against the Director’s Decision to the Board, for which an oral hearing was held on 7 March 2019.  The Board took the view that the inconsistencies in the material parts of the applicant’s evidence rendered his claims of risk of harm, if refouled, incredible.  The Board also found that the applicant fabricated certain claims, such as his discovery of bags of white powder in his tricycle and that he had brought those bags to the police.  Accordingly, the applicant’s appeal was dismissed by the Board’s Decision.

The Judge’s decision

7.The applicant filed a Form 86 on 18 June 2019 seeking leave to judicially review the Board’s Decision.  In his supporting affirmation filed on the same day, the applicant set out his grounds for review, which were summarised by the Judge at [20] of the CALL-1 Form as follows:

“(1)  Procedural impropriety: failure to properly apply para. 2 of the UN committee against Torture General Comment No. 2; failure to conduct sufficient inquiry into the relevant country of original conditions; failure to give sufficient reasons for assessment of BOR 3 risk; failure to consider his fear that the loan shark will harm him and his life will be in danger; and no sufficient basis to conclude that he will not be as risk of BOR 3 risk and Torture risk upon refoulement.

(2)   Error/Misdirection in law: failing to take into account psychological strain and threats to him personally or threats to him of being killed.”

8.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 [19] to [28] of the CALL-1 Form:  

“19. The applicant has filed Form 86 dated 18 June 2019 for leave to apply for judicial review of the Board’s Decision.

20. In his affidavit in support of his application, the applicant raised the grounds below:

(1)  Procedural impropriety: failure to properly apply para. 2 of the UN committee against Torture General Comment No. 2; failure to conduct sufficient inquiry into the relevant country of original conditions; failure to give sufficient reasons for assessment of BOR 3 risk; failure to consider his fear that the loan shark will harm him and his life will be in danger; and no sufficient basis to conclude that he will not be as risk of BOR 3 risk and Torture risk upon refoulement.

(2)  Error/Misdirection in law: failing to take into account psychological strain and threats to him personally or threats to him of being killed.

DISCUSSION

21. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

23. 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.”

24. For those reasons given in paragraphs 14 and 15, supra, the Board rejected his evidence in support of his claim. Those grounds under paragraph 20 do not assist the applicant as they are his bare and general assertions without any evidence in support^[1].

25. The applicant has raised no valid reason to challenge the Board’s Decision.

26. There is no reason that the Court should interfere with the Board’s finding of the facts.

27. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

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

Grounds for appeal

9.In the Notice of Appeal filed on 25 June 2024, the applicant stated, without elaboration, that the Judge failed to consider that the Director had failed to consider the applicant’s “difficulties upon refoulement”.  He also contended that the Judge failed to consider the BOR 2 and BOR 3 risks faced by the applicant upon refoulement.

10.In his written submissions lodged on 28 October 2024, the applicant repeated, inter alia, his complaints against the Director, the Board and the Judge, submitting (again without elaboration)  that the Board’s Decision was “improper”, and that the Board did not ‘inquire’ into his fears.

11.We heard the appeal on 5 December 2024.  The applicant appeared at the hearing, repeated that he did not wish to return to the Philippines, but otherwise had nothing to add to the matters already stated in his Notice of Appeal and written submissions.

Discussion

12.The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

13.In the application in the court below, the applicant raised with the Judge complaints of procedural impropriety and errors in law which were allegedly committed by the Board, such as the Board’s apparent failure to inquire into the “relevant country of original conditions” (see [7] above and [20] of the CALL-1 Form).  The applicant’s complaints, which formed his grounds for judicial review, were, for the reasons given at [24] of the CALL-1 Form, found to be unmeritorious and therefore rejected by the Judge.

14.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.

15.The applicant has in the Notice of Appeal failed to identify 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 failed to do so.

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

17.We therefore order that:

(1)  Leave be granted to the applicant under the summons filed on 21 August 2024 to lodge a sealed copy of the order made by the Judge on 18 June 2024 pursuant to O.59 r.5(1)(a)  of the Rules of the High Court, Cap.4A out of time;

(2)  The Notice of Appeal filed on 25 June 2024 be dismissed.

The Applicant appeared in person