Balanon Raquel Gurion v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 371/2024, [2025] HKCA 51

On Appeal From [2024] HKCFI 2310

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 371 OF 2024

(ON APPEAL FROM HCAL NO 1803 OF 2019)

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J U D G M E N T

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

1.This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 13 September 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 26 April 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 17 July 2018.

BACKGROUND

2.The Applicant is a national of the Philippines. She last arrived in Hong Kong as a visitor on 30 May 2015, and overstayed since 7 June 2015. On 8 July 2015, she surrendered herself to the Immigration Department. On 3 August 2015, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her ex-boyfriend (Rodel Marso) should she marry another man. Details of the Applicant’s claims have been summarised by the Judge at §§4-9 of his judgement dated 13 September 2024 (“the Judgment”).

3.By a Notice of Decision dated 17 July 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and risk of torture[4].

4.The Applicant appealed the Director’s Decision to the Board. On 26 April 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §15 of the Judgment, as follows:

“The Board noted that other than the single occasion when the applicant was slapped after she refused her ex-boyfriend’s marriage proposal, she had never suffered any ill-treatment. The threats by her ex-boyfriend would therefore probably be empty threats. Furthermore, there was also no evidence of state involvement in the matter. Based on such findings, the Board concluded that the [Applicant’s] case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [21]-[29], [40]-[49]. In any event, state protection and internal relocation would also be available according to the country of origin information [36]-[38], [50]-[55].”

THE JUDGE’S DECISION

5.On 28 June 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision and the Director’s Decision. No ground of review was given in the Form 86. Since the Director’s Decision had been overtaken by the Board’s Decision, the Judge correctly amended the Form 86 so that the Board became the Putative Respondent and the Director became the Putative Interested Party, and treated the Board’s Decision as being the subject matter of the application for leave to apply for judicial review. In her supporting affirmation, the Applicant raised various complaints which the Judge summarised at §18 of the Judgment, as follows:

“(1) the Board’s Decision was never read to her or translated to her and she did not understand it;

(2) the adjudicator has exercised her case management wrongly;

(3) the adjudicator was biased as he asked her employment plan, which she considers irrelevant; and

(4) the adjudicator did not give her the chance to make comments on the country of origin information (‘COI’).”

6.On 13 September 2024, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[19] 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…

[20] The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the [Applicant] complained that the Board did not accept her evidence. But she said that she was free to speak at the hearing.

…

[22] For the reasons given, the Board found that the ex-boyfriend’s threats were empty threats and he had no intention to harm her if she returns to the Philippines. It further found that state protection is available to her and internal relocation is viable for her.

[23] Those reasons [raised in her supporting affirmation] are not valid grounds to challenge the Board’s Decision. That the Board’s Decision was not translated to her is not a valid ground for her application[5]. The applicant was at liberty to make comments before the Board as she confirmed before me that she was free to speak before the Board. The other grounds are only her personal opinions without any evidence in support.

[24] The [Applicant] therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.”

THIS APPEAL

7.In her Notice of Appeal dated 16 September 2024, the Applicant merely stated that she wanted to appeal.

8.In her 2-page written submissions lodged on 28 October 2024, the Applicant repeated the factual basis of her non-refoulement claim. She also stated that internal relocation would not be a viable option to her because of financial constraints and the connections that her ex-boyfriend had in the Philippines.

9.The Applicant’s appeal was originally fixed to be heard on 10 December 2024. However, by a letter to this Court dated 8 November 2024, the Applicant requested to “close her case” in Hong Kong, claiming that she wanted to return home as soon as possible. The practice of this Court is to consider and, if appropriate, determine an appeal substantively in such circumstances instead of granting leave to an applicant to withdraw his/her appeal. In view of the Applicant’s failure to lodge written submissions in support of the appeal and having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal substantively on paper without an oral hearing.

DISCUSSION

10.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 a non-refoulement case, the Court of Appeal would 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 of Appeal’s role is not to examine the Board or Director’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst, at §14(6)).

11.Further, the assessment of evidence, COI, 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. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

12.The Applicant has failed to identify or show any error in the Judgment, or raise any viable ground of appeal against the Order. We have considered the Judgment carefully and are unable to see any reasonable ground of appeal against the Order.

13.The Applicant’s appeal against the Order has no merit and is dismissed.

The Applicant, acting in person