Re Arellano Ronaldo Gonzaga

CACV 529/2024, [2025] HKCA 484

On appeal from [2024] HKCFI 3124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 529 OF 2024

(ON APPEAL FROM HCAL 2027/2019)

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J U D G M E N T

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Hon Barma JA (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 26 November 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 12 July 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 26 September 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.The applicant is a national of the Philippines. He last arrived in Hong Kong on 4 June 2016 as a visitor, but he overstayed and surrendered to the Immigration Department on 29 June 2016.  Thereafter, he lodged a non-refoulement claim on 18 July 2016 by way of written representation.

3.The applicant’s non-refoulement claim was based on a fear, should he be refouled, of being harmed or killed by one Benjie Serrano and his people.  The details of the applicant’s claim have been summarised by the Judge at [4] to [6] of the Judge’s decision (“the CALL-1 Form”)[1].

4.By a Notice of Decision dated 26 September 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the torture risk^[2], the BOR 2 risk^[3], the BOR 3 risk^[4], and the persecution risk^[5].

5.The applicant appealed to the Board.  After a hearing on 8 March 2019, the Board dismissed the appeal on 12 July 2019 (i.e. the Board’s Decision).  The Board’s Decision covered all grounds for non‑refoulement protection.  Due to inherent inconsistencies in the applicant’s evidence on material events, the Board found the applicant’s claims of fear to be incredible and unsubstantiated.  In any event, the Board considered that suitable options of internal relocation were available to the applicant to minimise the risk of harm, if any.

The Judge’s decision

6.The applicant filed a Form 86 on 16 July 2019 seeking to judicially review the Board’s Decision but did not set out any grounds for judicial review.

7.In the applicant’s supporting affidavit, he merely exhibited a copy of the Board’s Decision.

8.After summarizing 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 [12] to [18] of the CALL-1 Form:

“12. 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).

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

14. 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.’

15. The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

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

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

DISPOSITION

18.  I refuse to grant leave to 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 4 December 2024, the applicant stated that he would face hardship should he be refouled, and that the Board had wrongfully relied on “sources of news which is not officially recognised”, cases which are “outdated” and information lacking in credible sources.

10.In breach of the directions given by the Registrar of Civil Appeals, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non‑compliance with such direction.

11.The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1.  The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants.  Non-compliance substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at a hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance is treated as the abandonment of the right to an oral hearing.

12.The hearing date on 7 May 2025 was therefore vacated and the applicant was debarred from lodging any written submissions.  We will deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

13.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 wholly failed to do so.

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.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

15.As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.  In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s decision and are satisfied that they are both in order.

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