Re Jalandoni Mary Ann Veloria

CACV 537/2024, [2025] HKCA 483

On appeal from [2024] HKCFI 3208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 537 OF 2024

(ON APPEAL FROM HCAL 2194/2019)

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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 3 December 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 25 July 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 5 October 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.The applicant is a national of the Philippines. She last arrived in Hong Kong in 2008 as a foreign domestic helper and, after the termination of her employment contract on 15 January 2009, was granted permission to remain until 30 January 2009.  However, she overstayed and surrendered to the Immigration Department on 31 March 2009. 

3.The applicant subsequently made a torture claim under Part VIIC of the Immigration Ordinance (Cap 115), which was rejected by the Director on 5 June 2013. Thereafter, she lodged a non-refoulement claim on 8 July 2013 by way of written representation.

4.On 28 November 2013, the applicant’s appeal to the Board against the Director’s dismissal of her torture claim was dismissed.

5.The applicant’s non-refoulement claim was based on a fear, should she be refouled, of being harmed or killed by her loan shark and a guarantor of the loan named Lucio.  The details of the applicant’s claim have been summarised by the Judge at [4] to [8] of the Judge’s decision (“the CALL-1 Form”)[1].

6.By a Notice of Decision dated 5 October 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] (but not the torture risk^[5]).

7.The applicant appealed to the Board.  After a hearing on 8 July 2019, the Board dismissed the appeal on 25 July 2019 (i.e. the Board’s Decision).  The Board’s Decision covered all grounds for non-refoulement protection except for the torture risk. Due to the vague and unreliable evidence provided by the applicant on material issues such as details of the loan shark/finance company and whether any action had been taken by the loan shark against her family, the Board found the applicant’s case to be incredible, and thus it was not satisfied that she had borrowed money from the loan shark, and accordingly that she would not face a real risk of harm should she return to the Philippines.

The Judge’s decision

8.The applicant filed a Form 86 on 2 August 2019 seeking to judicially review the Board’s Decision but did not set out any grounds for judicial review.

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

10.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 [17] to [22] of the CALL-1 Form:

“17. 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).

18. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant simply asked the Court to review the Board’s Decision.

19. 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.’

20. For the reasons given, the Board rejected her evidence in support of her claim. This is a matter of the credibility of her evidence, which is squarely within the province of the Board. Those grounds under paragraph16 are her bare assertions without any evidence in support. There is no record that the issues of psychological stress or threat were raised before the Board. She has no reason to complain. All of the grounds are not valid to challenge the Board’s Decision.

21. I find that the applicant has failed to show that there is realistic prospect in her intended application.

DISPOSITION

22. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decisions. Accordingly, I dismiss her application.”

Grounds for appeal

11.In the Notice of Appeal filed on 10 December 2024, the applicant stated that the Judge failed to consider her fear and risk of returning to her country, and that state authorities in the Philippines would not be able to protect her upon her return.

12.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.

13.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.

14.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

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 wholly failed to do so.

16.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.

17.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.

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

The applicant acting in person