Re Ladiwan Angie Lisa Somebang

CACV 484 /2024, [2025] HKCA 277

On appeal from [2024] HKCFI 3174

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 484 OF 2024

(ON APPEAL FROM HCAL NO. 2075 OF 2019)

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J U D G M E N T

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

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Lai (“the Judge”) given on 7 November 2024[1] dismissing her application for leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal against the decision of the Director of Immigration (“the Director”), which rejected her non‑refoulement protection claim.

The applicant’s claim

2.The applicant is a national of the Philippines aged 52.  She entered Hong Kong on 16 May 2014 and was given permission to remain as a visitor for two weeks.  She overstayed and surrendered to the Immigration Department on 28 May 2015.  She subsequently raised a non-refoulement claim based on fear of being harmed or killed by her sister (“W”) and the brother of her sister’s husband (“M”) due to her inability to repay a loan due to W and W’s husband.  Her claim was set out in details in the Director’s decision at [8] and summarized by the Judge at [3] to [9] of the Form CALL-1.  It is not necessary to repeat it.

Decisions of the Director and the Board

3.By a Notice of Decision dated 23 February 2018, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. 

4.The applicant’s appeal against the Director’s decision was heard before the Board on 4 March 2019.  By a decision given on 16 July 2019, the Board dismissed the appeal.  In gist, the Board doubted the credibility of the applicant’s claim and evidence, having regard to discrepancies in her oral evidence and the claim she made to the Director, and found the applicant did not face any risk of harm as claimed. The Board also considered that, even on the applicant’s own case, the acts or conduct of W and M did not attain the minimum degree of severity, and the suffering she claimed did not meet the statutory requirement of torture.  The Board also found that state protection and internal relocation options were reasonably available to the applicant, which would have reduced any risk of harm that the applicant might face.  The Board concluded that the applicant failed to show she was entitled to non-refoulement protection on any of the applicable grounds.

The Judge’s decision

5.The applicant filed a Form 86 and an affidavit on 22 July 2019 to seek leave to apply for judicial review against the decision of the Board.  The applicant did not provide any grounds for seeking relief. 

6.The Judge heard the application at a hearing held on 17 October 2024.  By a Form CALL-1 dated 7 November 2024, the Judge dismissed the application on the basis that the applicant failed to show her intended judicial review enjoyed any realistic prospect of success.  In brief, the Judge considered there was no discernible error of law, procedural unfairness or irrationality in the Board’s decision.  Further, the Board’s finding that the applicant did not face any risk of harm was a finding of fact exclusively within the Board’s province and there was no proper basis for the Court to interfere with it by way of judicial review. 

The appeal

7.By a notice of appeal filed on 18 November 2024, the applicant appeals the Judge’s decision to this court.  In the Grounds of Appeal attached to the notice of appeal, the applicant stated that:

“I want to appeal because I don’t want to be harmed rather killed if I go back to my country.  My problem about the safety of my life is getting worst.  The people I had been avoiding still exist.  I need to appeal my claim application.”

8.In her written submissions, the applicant reiterated that she is very concerned about her safety.  She stated that her younger brother had warned her to avoid being seen because he knew the people whom the applicant has been avoiding have a “dirty plan” to get at her once she is back to her home town.  She also said that her relatives had tried to convince W to give up her revenge plan but to no avail. 

9.The appeal is listed for hearing on 25 March 2025.  By a letter dated 27 February 2025 to the Court, which was forwarded by the Immigration Department, the applicant stated the following:

“I would like to request for going back my home country Philippines. And my life is safe now in Philippines.  And I would like to go back as soon as possible and I would like to close all my case in Hong Kong. My passport is already expired.  CACV 484-2024 is my High Court number. Thank you sir/madam for your consideration.”

Our reasons for decision

10.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In sum, the role of the court in a judicial review is not to provide a further avenue of appeal.  Assessment of evidence and Country of Origin Information materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), who are the primary decision makers.  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.  Further, an appeal to the Court of Appeal is not an avenue for the applicant to re-argue the case.  The Court of Appeal will not interfere with the first instance decision unless it is shown that the first instance judge has erred.

11.We are of the view that the matters raised in the Grounds of Appeal and written submissions do not constitute viable grounds of appeal.  Importantly, the applicant has not pointed to any error in the Judge’s decision.  Further, the Board had rejected the applicant’s evidence.  In the Form 86 and supporting affidavit, the applicant has not identified any error in the Board’s assessment of the evidence and finding of facts, or any irrationality or procedural irregularity in the Board’s decision.  In light of the Board’s findings, the applicant’s assertions in the Notice of Appeal and written submissions that she will be in danger if she returns to her home country have no supporting foundation.  In the circumstances, the Judge’s decision to dismiss the application for leave to apply for judicial review cannot be faulted. 

12.As the applicant’s appeal is devoid of merits and in light of her request to withdraw her appeal, we dismiss the appeal.  The hearing date of 25 March 2025 is vacated.

The applicant, unrepresented, acted in person

[1]  [2024] HKCFI 3174

[2] 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.

[3]  This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4]  This refers to 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).

[5]  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.