Badua Bella Narciso v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 520/2024, [2025] HKCA 223

On Appeal From [2024] HKCFI 3155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 520 OF 2024

(ON APPEAL FROM HCAL NO 2120 OF 2019)

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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 K. W. Lung (“Judge”) on 26 November 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 4 June 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 28 January 2019 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a Filipino born in 1972. She was employed as a foreign domestic helper until her contract was terminated on 20 April 2018 and she had overstayed since 18 May 2018. By written representation dated 24 and 25 October 2018, the applicant lodged a non-refoulement claim on the basis that, if refouled, she would be threatened and killed by the Nacionalista Party because she was a member of the Liberal Party and was accused of misleading the elderly to vote for the Liberal Party.

3.The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] By a notice of decision dated 28 January 2019, the Director rejected her claim.

4.The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 25 April 2019, during which she gave evidence and answered questions from the Board. In its decision dated 4 June 2019, the Board had doubts about the applicant’s story given the vague and contradictory account she presented and did not accept there was any truth in it. It also did not accept on reasonable probability that she had been threatened after the 2004 election. Accordingly, the Board dismissed the applicant’s appeal and affirmed the decision of the Director.

The Judge’s decision

5.On 24 July 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. She did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.

6.The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing. On 26 November 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out in [14] to [19] of the said decision as follows:

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

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

16. 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.’

17. For the reasons given, the Board rejected the applicant’s evidence in support of her claim.

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

19. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.”

Appeal to this Court

7.On 2 December 2024, the applicant filed her Notice of Appeal against the Judge’s decision. She asserted that the decision was unreasonable and claimed that her life would still be in danger upon return to her home country.

8.In the written submissions lodged by the applicant on 16 December 2024, she merely reiterated her claimed fear from the Nacionalista Party, but without providing any evidence in support. As the applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, we shall accordingly determine the appeal on the basis of the available documents and materials.

Discussion

9.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.

10.In the present case, the Board doubted the truth of the applicant’s story and rejected that she had been threatened after the 2004 election. On such basis, the Board found the applicant faced no real risk of harm upon refoulement. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.

11.The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision. Equally, she 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.

12.The applicant’s appeal is accordingly dismissed.

The Applicant, unrepresented, acting in person