Re Ragusante Rodrigo Jr Cac

CACV 255/2024, [2025] HKCA 30

On Appeal From [2024] HKCFI 1546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 255 OF 2024

(ON APPEAL FROM HCAL 1671 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 20 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 24 May 2019 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 21 February 2018 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of the Philippines.  He entered Hong Kong as a foreign domestic helper on 9 October 2010, but he did not depart after the premature termination of his employment contract, and was later arrested by the police on 16 March 2017.  Thereafter, he lodged a non-refoulement claim by way of a written representation dated 18 March 2017.

3.The applicant’s claim was based on a fear of being harmed or killed by a drug dealer known as Joseph Tan (“Tan”). 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].

4.By a Notice of Decision dated 21 February 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 30 November 2018. The Board found, inter alia, that there were material inconsistencies in his evidence, such as whether he had in fact encountered Tan before he left the Philippines in 2010. The Board also found that no harm or threat of harm was posed to him by reason of his previous connection to an organisation which linked him to Tan.  All in all, the Board held that the risk of harm from Tan, should the applicant be refouled, was low.  Further and in any event, suitable options of internal relocation within the Philippines as well as adequate state protection were available to the applicant to minimise or reduce the risk of harm, if any.  Accordingly, the applicant’s appeal was dismissed by the Board’s Decision.

The Judge’s decision

6.The applicant filed a Form 86 on 18 June 2019 seeking leave to judicially review the Board’s Decision, but did not set out any grounds for review.

7.In his supporting affirmation filed on the same day, the applicant merely exhibited a copy of the Board’s Decision, and stating that he would like to “reject and review” the Board’s Decision as the Board had “[disregarded his] dangerous situation”.

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 [21] to [27] of the CALL-1 Form:  

“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 the reasons given by the Board above, the Board dismissed his appeal. The applicant is unable to raise any valid ground to challenge the Board’s Decision.

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

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

CONCLUSION

27.  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 27 June 2024, the applicant stated that he did not “want to go home yet” because his life was “still in dangerous situation”.

10.In his written submissions lodged on 6 November 2024, the applicant merely referred to the well-established principles in ST v Director of Immigration (sic)[6] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

11.We heard the appeal on 5 December 2024.  The applicant appeared at the hearing, submitted that his life was still in danger in the Philippines and that he did not want to return, 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 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.

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.Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the consideration of his leave application by the Judge and in the processing of his non-refoulement claim.

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

The Applicant appeared in person