Busto Jocelyn Manuel v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 116 /2024, [2025] HKCA 564

On appeal from [2024] HKCFI 839

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 116 OF 2024

(ON APPEAL FROM HCAL NO 376 OF 2019)

________________________

________________________

____________________

J U D G M E N T

____________________

Hon Kwan VP (giving the Judgment of the Court):

1.This is an appeal by the applicant, Ms Jocelyn Manuel Busto, against the order made by Deputy High Court Judge To on 19 March 2024 refusing her leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“the Board”) given on 24 January 2019, which dismissed her appeal against the rejection by the Director of Immigration (“the Director”) of her non-refoulement claim by a notice of decision dated 24 May 2018.

Background

2.The applicant is a national of the Philippines born in 1983.  She claimed to have last entered Hong Kong on 11 December 2014 to work as a foreign domestic helper.  Her contract was terminated prematurely but she did not leave Hong Kong within the prescribed period.  She overstayed and surrendered to the authorities on 2 June 2016.  On 25 July 2016, she raised a non-refoulement claim.  Her claim was made on the basis that if she returned to the Philippines, her husband would harm or kill her given that he had been attacking her about thrice a week since 2009 when she was pregnant. 

3.By a notice of decision dated 24 May 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against her.  Those grounds are BOR 3 risk^[1], persecution risk^[2], torture risk^[3] and BOR 2 risk^[4].

4.The applicant appealed to the Board against the Director’s decision.  It assessed the applicant’s claim based on the events as alleged by her.

5.The Board found that if the applicant was refouled to the Philippines, there was in fact no real risk of harm because her alleged risk of harm did not reach the requisite level.  Further, the Board found her evidence vague, contradictory, and unconvincing and did not accept that she suffered the alleged harm from her husband.  The Board noted that the applicant had no intention to live with her husband if she were deported to the Philippines and as she had ceased contact with him for many years no real risk of harm would occur.

6.Thus, the Board concluded there was no real risk of harm for the applicant in the event of refoulement to the Philippines.  By its written decision dated 24 May 2018, the Board dismissed her appeal in respect of all the applicable grounds.

The judge’s decision

7.On 11 February 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.  Apart from reciting the applicant’s background, the Form 86 repeated allegations which revolve around misdirection of the law, procedural unfairness, irrationality, the Board’s breach of duty of care owed to an unrepresented claimant, such as insufficient research and inquiry into the country of origin information (“COI”), reliance on irrelevant or outdated COI, ignoring the most updated COI, failure to obtain requisite documents, late delivery of the hearing bundle and lack of language assistance. Except for the last two items, the complaints were wholly lacking in particulars.  In the accompanying affirmation, she simply repeated the basis of her claim for non-refoulement protection.

8.The judge held an oral hearing for the application on 8 February 2024 and issued his decision on 19 March 2024, refusing to grant leave to apply for judicial review.  He did so on the basis that the role of the court in judicial review is supervisory and it must not usurp the fact-finding power vested in the Director and the Board.  The judge did not find any error of law or procedural unfairness in the Board’s decision.  The findings of the Board are not challengeable as Wednesbury unreasonable or irrational and the applicant failed to show that she has any realistic prospect of success in the proposed judicial review.

Appeal to this court

9.On 26 March 2024, the applicant filed her Notice of Appeal against the judge’s decision.  Her stated grounds of appeal were essentially that she would be harmed or even killed by her husband, and that she needs proper medication in Hong Kong.

10.The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing.  We shall determine this appeal on the basis of the available documents and materials.

11.The applicant lodged her written submissions on 9 April 2024, merely repeating what is stated in her Notice of Appeal.  We have duly considered all her submissions.

Analysis and disposition

12.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 judgment, 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.

13.In the present case, the Board found there was no real risk of harm upon refoulement as alleged, because the applicant had no longer lived with her husband or maintained contact with him anymore. Therefore, the Board considered that internal relocation was viable to further protect the applicant from her alleged risk of harm.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  As for the ground advanced relating to human rights, it consists of mere general and bald assertions regarding the decision of the Director without any particulars.  They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

14.The applicant 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. 

15.As we are not satisfied there is any error in the judge’s decision, the applicant’s appeal is dismissed accordingly.

[1]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[2]  This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[3]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[4]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).