RE DOMINGO MARY JEAN SUNIGA

CACV 606/2018

[2019] HKCA 931

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 606 OF 2018

(ON APPEAL FROM HCAL NO. 440 OF 2018)

_____________________________

_____________________________

______________________

D E C I S I O N

______________________

Hon Cheung JA (giving the Decision of the Court) :

1)   Leave to appeal to Court of Final Appeal

1.1   On 17 May 2019, this Court handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam given on 19 December 2018 in which he refused to grant leave to the applicant to apply for judicial review (‘Decision of the Judge’).

1.2   The facts and issues in the appeal before the Court of Appeal, as well as the Court’s reasons for dismissing it, are set out in our judgment.  We will not repeat them here.

1.3   The applicant now applies, by a notice of motion and affidavit dated 27 May 2019, for leave to appeal against our judgment to the Court of Final Appeal.

1.4   The content of the applicant’s notice of motion is generally undecipherable.  Trying our best, it seems the applicant is complaining that it is not true that her claims are without substance.  She said that she did not complain about the poor performance of her duty lawyer because she was afraid to be picked out.  The applicant repeated that she did not have time to address the bundles before the Board.  All of these complaints lacked any meaningful particulars.

1.5   The applicant’s affidavit exhibited copies of the Court’s judgment and order.  She complained that the judges were wrong in law to hold that there was no state acquiescence and they had failed to account for current situation in the Philippines.  

1.6   The applicant had failed to comply with the Court’s directions of 28 May 2019 by failing to lodge her skeleton submissions.

2)  Legal principles

2.   Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’) leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

3)   Our view

3.1   The matters stated by the applicant in her notice of motion and affidavit do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the HKCFAO. Nor is there any such question apparent to us from the matters she has raised in her notice of motion or affidavit.

3.2   We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

4)  Disposition

4.   For these reasons, the notice of motion dated 27 May 2019 is dismissed.

CACV 606/2018

[2019] HKCA 533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 606 OF 2018

(ON APPEAL FROM HCAL NO. 440 OF 2018)

_________________________

_________________________

_________________________

J U D G M E N T

_________________________

Hon Cheung JA (giving the Judgment of the Court) :

1)  The appeal

1.1   This is an appeal by the applicant against the decision of Deputy High Court Judge Josiah Lam given on 19 December 2018 in which he refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration and the Torture Claims Appeal Board.

1.2   The applicant did not comply with the directions of the Registrar of Civil Appeals of 28 January 2019 and did not lodge any skeleton submission.  The original hearing fixed for 7 May 2019 was hence vacated and the applicant’s appeal is now being considered on paper.

2)  Factual background

2.1   The applicant is a national of the Philippines.  She came to Hong Kong to work as a domestic helper.  She overstayed in Hong Kong from 19 February 2014.  She raised a non‑refoulement claim on 22 August 2014.

2.2   The basis of the applicant’s claim is that she would be harmed or killed by the New People’s Army in the Philippines (‘NPA’).

2.3   The background facts have been summarized in the decision of the Judge at [1]-[13].

3)  The Director’s Decision

3.1   The Director decided against the applicant’s torture claim on 8 July 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

3.2   The Director further decided against the applicant’s right to life claim on 26 July 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered the applicant’s rights under Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

4.1   The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 23 November 2017, the Board dismissed the applicant’s appeal on 7 March 2018 (‘the Board’s Decision’).

4.2   The Board found a number of unconvincing and inconceivable features in the applicant’s allegations.  The Board found the applicant incredible.  It also found reasonable state protection and internal relocation were available.  The Board did not accept the applicant faced any torture risk, persecution risk, BOR 2 or BOR 3 risks.

5)  Decision of the Judge

5.   The Judge held that the applicant was wrong to say that the Director failed to screen the applicant’s non‑refoulement claim, as it was the applicant that failed to supply additional information.  The Judge held that there was no question of state acquiescence as the applicant did not seek help from the authorities.  Further, the Board did not believe the applicant’s torture claim.

6)  Grounds of appeal

6.   The applicant in the notice of appeal filed on 24 December 2018 stated that her grounds of appeal were referred to in her supporting affirmation.  In the applicant’s supporting affirmation, she complained that the Judge did not give detailed reasons to support his decision.  She also complained that the Judge was wrong to hold that there was no state acquiescence.

7)  Our view

7.1   The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non‑refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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 : 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; Re Lakhwinder Singh[2018] HKCA 246 and Re Masoom Parvez[2018] HKCA 163.

7.2   The applicant has provided no proper grounds of appeal against the decision of the Judge.  The Board dismissed the applicant’s case due to its finding of her evidence being exaggerated and incredible.  The applicant failed to provide particulars on how the Judge failed to provide detailed reasons.

7.3   Accordingly, the appeal is dismissed.