Maneboy William Montero v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 379/2024, [2025] HKCA 205

On Appeal from [2024] HKCFI 2442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 379 OF 2024

(ON APPEAL FROM HCAL NO 1832 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 Reuden Lai (“the Judge”) dated 11 September 2024 (“the Order”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 24 June 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of the Immigration (“the Director”) dated 1 February 2017.

BACKGROUND

2.The Applicant is a national of the Philippines. He entered Hong Kong as a visitor on 26 February 2006, and had overstayed since 20 March 2006. He was arrested by the police on 18 February 2008. On 26 August 2008, he lodged a torture claim (which was later taken as a non-refoulement claim) on the basis that, if refouled, he would be harmed or killed by the members of an unknown communist group (“the Group”) because he refused to join the Group. Details of the Applicant’s claim have been summarised by the Judge at §§17-22 of the CALL-1 Form.

3.By a Notice of Decision dated 23 December 2014 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to the following risks: torture risk[1], BOR 3 risk[2], and persecution risk[3].

4.On 13 February 2015, the Applicant filed a notice of appeal against the Director’s Decision to the Board. The notice of appeal was filed outside the 14-day period stipulated in Section 37ZS(1) of the Immigration Ordinance, Cap 115 for filing a notice of appeal. Pursuant to Section 37ZT(2) of the Immigration Ordinance, the Board proceeded to determine as a preliminary issue whether to allow the late filing of his notice of appeal.

5.By a written decision dated 17 July 2015, the Board refused to allow the late filing of the Applicant’s notice of appeal, holding that the Applicant had failed to give any reasons to explain the delay, and the facts of his case did not give rise to any special circumstances by reason of which it would be unfair not to allow the late filing of his appeal (“the Board’s Decision”).

6.The Director, by a letter dated 9 January 2017, invited the Applicant to submit additional facts which might be relevant to his non-refoulement claim with reference to BOR 2 risk[4]. In the absence of any response from the Applicant, the Director by a Notice of Further Decision dated 1 February 2017 rejected the Applicant’s claim with reference to BOR 2 risk (“the Director’s Further Decision”).

7.The Applicant appealed the Director’s Further Decision to the Board. On 24 June 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Further Decision (“the Board’s 2^nd Decision”). The Board’s reasons for its decision were summarised by the Judge at §§36 and 37 of the CALL-1 Form, as follows:

“[36] The Board considered the Applicant’s case and held that even if the Applicant’s evidence was taken at its height, his encounter with the Group for about 20 to 30 minutes and being followed by one of those men could not be a valid basis for claiming that he faced serious harm from them.

[37] The Board found that his claim for protection based on fear of harm by the Group was based on ‘the most extreme speculation’ and unsupported by any credible evidence. The Board was not persuaded, even to the low standard applicable, that there was a real risk or real chance that the Applicant would suffer arbitrary deprivation of his life in contravention of BOR 2 if he were refouled to the Philippines.”

THE JUDGE’S DECISION

8.On 2 July 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s 2^nd Decision. No ground of review was given in the Form 86 or in his supporting affirmation of the same date.

9.On 11 September 2024, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“[46] The Applicant did not provide any particulars or specifics as to how the Board had erred in the [Board’s 2^nd Decision] in affirming the [Director’s Further Decision], or in what way was the [Board’s 2^nd Decision] unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

[47] Having rigorously examined the [Board’s 2^nd Decision], the [Director’s Decision] and the [Director’s Further Decision] with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to assessing the BOR 2 risk; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness.

[48] The Board found that there was no real risk or real chance that the Applicant would suffer ill-treatment of any sort or arbitrary deprivation of his life in contravention of BOR 2 if he were refouled to the Philippines. It was on such basis that the Board found that the Applicant had failed to prove his claim for protection against the BOR 2 risk. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved errors of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the [Board’s 2^nd Decision] or procedural unfairness at any stage of the non-refoulement proceedings. The [Board’s 2^nd Decision] does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The [Board’s 2^nd Decision] is without fault. The proposed judicial review does not have realistic prospects of success.”

THIS APPEAL

10.In his Notice of Appeal filed on 19 September 2024, the Applicant repeated his fear of being refouled back to his home country, and stated that he was sure he would not get any protection from the government or the police in his home country. He maintained that internal relocation was not an option for him. He also said that he did not have any knowledge of Hong Kong law.

11.On the same date, the Applicant consented to his appeal being disposed of on paper by the Court without an oral hearing.

12.In his written submissions lodged on 30 September 2024, the Applicant repeated what he had previously stated in his Notice of Appeal.

DISCUSSION

13.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, 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’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

14.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. No such error of law or procedural unfairness or irrationality in the Board’s 2^nd Decision is shown in the present case.

15.The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

16.The Applicant’s appeal has no merits, and is dismissed.

The Applicant, acting in person