Lagulos Sheila Saavedra v. Torture Claims Appeal Board

CACV 477/2024, [2025] HKCA 392

On Appeal From [2024] HKCFI 3026

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 477 OF 2024

(ON APPEAL FROM HCAL NO 1869 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 Bruno Chan (“the Judge”) dated 5 November 2024 (“the Order”) refusing to grant her leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 20 June 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 July 2018.

BACKGROUND

2.The Applicant is a national of the Philippines. She last arrived in Hong Kong as a visitor on 26 January 2009, and had overstayed since 10 February 2009. She was arrested by the police on 12 October 2009. On 21 October 2009, she raised a torture claim[1] on the basis that, if refouled, she would be harmed or killed by her creditor because she was unable to repay a loan owed to the creditor. Her torture claim was rejected by the Director on 29 May 2013, and her appeal against the rejection of the torture claim was dismissed by the Board on 7 October 2013. In the meantime, on 8 July 2013, she lodged a non-refoulement claim on the same basis as her torture claim.

3.On 24 August 2013, the Applicant gave birth to a son out of a relationship with a local resident in Hong Kong. Her son is regarded as a Hong Kong permanent resident with the right of abode in Hong Kong. On 21 May 2018, the Applicant raised a new claim for non-refoulement protection essentially on the basis that she could not go back to her home country (and therefore be separated from her son) because her son was suffering from developmental and health problems and would require care from her in Hong Kong. Details of the Applicant’s claim have been summarised by the Judge at §1-5 of the CALL-1 Form.

4.By a Notice of Decision dated 30 July 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on the remaining applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

5.The Applicant appealed the Director’s Decision to the Board. She attended a hearing before the Board on 2 May 2019 with her legal representative. On 20 June 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).

THE JUDGE’S DECISION

6.On 4 July 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86. In her supporting affidavit of the same date, the Applicant merely stated that she would like to “reject and review” the Board’s Decision as it had disregarded her dangerous situation.

7.On 5 November 2024, the Judge refused to grant leave to the Applicant to apply for judicial review, for the following reasons:

“[10] … in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

[11] As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh…

[12] The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of, there is simply no justification to afford her with non-refoulement protection in Hong Kong...

[13] As for her claim that her son needed her to take care of him in Hong Kong due to his medical issues, as correctly found by the Board that if she were to leave her son to return to the Philippines that by itself cannot amount to any ill-treatment under BOR 3, and as held by the Court of Final Appeal in Comilang & Anor v Director of Immigration, and Luis & Others v Director of Immigration, FACV Nos. 9 & 10 of 2018 [2019] HKCFA 10, 4 April 2019, that persons with no right to enter or remain in Hong Kong cannot rely on his or children’s rights to do so as a matter of the Hong Kong constitutional law.

[14] In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

THIS APPEAL

8.In her Notice of Appeal filed on 13 November 2024, the Applicant essentially repeated what she had previously stated in her supporting affidavit filed in the proceedings below.

9.In her 3-page written submissions lodged on 10 April 2025, the Applicant contended that the Board had failed to consider the grave danger that she would face if she was to return to the Philippines where state protection would not be available to her. To support her contention, she relied on the World Reports 2023 and 2024 produced by an international non-governmental organisation (collectively “the Human Right Reports”) to illustrate the human rights situation in the Philippines.

10.At the hearing of the present appeal, the Applicant said that someone helped her write the aforesaid submissions. She said that the only reason why she was in court at the hearing and pursued the appeal was because she needed to look after her son, who was suffering from ADHD and autism and had some mental problem and required medication. She also confirmed that she would not be relying on her written submissions in support of the present appeal.

DISCUSSION

11.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)).

12.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 decision of the Board is shown in the present case.

13.At the hearing before the Board, the Applicant through her legal representative expressly stated that she would no longer rely on her claimed fear of harm at the hands of her creditor, and would pursue her claim only on the basis that she needed to remain in Hong Kong in order to take care of her son. She also contended that her refoulement to the Philippines in such circumstances would give rise to a BOR 3 risk (see the Board’s Decision at §§6 and 8). The Board proceeded to determine her claim on that basis, and held that the Applicant’s mental suffering as a result of separation from her son could not amount to torture or to cruel, inhuman or degrading treatment or punishment sufficient to entitle her to non-refoulement protection on the ground of BOR 3 risk (see the Board’s Decision at §§25 to 29; also the Judge’s decision at §13). The Board plainly had considered the Applicant’s situation, but did not consider that her claim based on BOR 3 risk had been made out. The Applicant’s complaint against the Board’s Decision has no merit.

14.We note that at §§9 and 12 of the CALL-1 Form, the Judge stated, mistakenly, that the Board rejected the Applicant’s appeal on the grounds of, inter alia, the availability of state protection and reasonable internal relocation option in the Philippines. While these were grounds relied on by the Director to reject the Applicant’s non-refoulement claim, they were not relied on by the Board to reject her appeal. As earlier mentioned, at the hearing before the Board, the Applicant no longer relied on her claimed fear of harm by her creditor in the Philippines. In our view, the Judge’s mistake is immaterial for the purpose of the present appeal because, as observed by the Judge at §13 of the CALL-1 Form, the Board correctly found that “if [the Applicant] were to leave her son to return to the Philippines that by itself cannot amount to any ill-treatment under BOR 3”.

15.For the sake of completeness, we would also briefly comment on the matters raised by the Applicant in her Notice of Appeal and/or written submissions. The matters raised in the Applicant’s Notice of Appeal and written submissions are vague and general, and are directed at the Board’s Decision. They cannot constitute valid grounds of appeal against the Judge’s decision. The Human Right Reports which the Applicant seeks to rely upon in the present appeal are in the nature of new evidence. The Applicant has not made any application for leave to adduce new evidence for the purpose of her appeal. In any event, to justify the admission of new evidence, the Applicant has to satisfy the three conditions established in Ladd v Marshall [1954] 1 WLR 1489[5] (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(3)). The Applicant has failed to show that the Ladd v Marshall conditions are satisfied in relation to the Human Right Reports. In particular, she has failed to show that the evidence could not have been obtained and adduced in the proceedings below with reasonable diligence, or would or might, if believed, have a very important effect on the Judge’s decision. The Human Right Reports even if admitted will add nothing of substance to the present appeal. There are also no exceptional circumstances in the present case to justify exercising our residual discretion to admit the Human Right Reports notwithstanding the non-satisfaction of the Ladd v Marshall conditions.

16.The Applicant has failed to raise any viable ground of appeal against the Order.

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

The Applicant, acting in person