Case Detail

CACV 260/2020

[2021] HKCA 197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 260 OF 2020

(ON APPEAL FROM HCAL NO 437 OF 2018)

________________________

BETWEEN
	Matbagan Imelda Manoden	Applicant
	and
	Immigration Department	Putative Respondent

________________________

Before: Hon Kwan VP, Cheung JA and Au JA in Court

Date of Written Submission: 3 February 2021

Date of Judgment: 26 February 2021

________________________

J U D G M E N T

________________________

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

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Cheung JA and Au JA) handed down on 12 January 2021 ([2021] HKCA 14). The Court of Appeal dismissed her appeal against the decision of Deputy High Court Judge Bruno Chan on 2 July 2020 ([2020] HKCFI 1298) dismissing the application for leave to apply for judicial review concerning her non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 22 January 2021 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged her written submission on 3 February 2021. Having considered her submission, we think it appropriate to determine this application on paper and proceed to do so.

3. The applicant is a national of the Philippines of 44 years old. She last arrived in Hong Kong on 28 May 2011 as a visitor and subsequently overstayed. She lodged a non-refoulement claim which was received by the Immigration Department on 14 March 2014. Her claim was made on the basis that she would be tortured or killed by her husband’s uncle who accused her of defaming him in 2010.

4. Her non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 25 July 2016 and 14 July 2017. Her appeal against the Director’s decisions was dismissed by the Torture Claims Appeal Board(“the Board”) on 15 March 2018.

5. She filed a Form 86 on 19 March 2018 to seek leave to apply for judicial review, which was treated by the court as an application in respect of the Board’s decision. Her application was refused by DHCJ Bruno Chan on 2 July 2020.

6. On 13 July 2020, the applicant filed a notice of appeal against the decision of DHCJ Bruno Chan. As the applicant consented to a disposal on paper by the court without an oral hearing, her appeal was dealt with on paper. It was dismissed by the Court of Appeal on 12 January 2021. The applicant filed a Notice of Motion on 20 January 2021 for leave to appeal to the Court of Final Appeal.

7. The applicant stated as her grounds of appeal in the Notice of Motion that she disagrees with the decisions of the authorities and the court because her life is still in danger in her homeland in the Philippines.

8. Her contentions in her written submissions may be summarized as follows:

(1) The applicant was never provided with proper legal and language assistance. The determination of the appeal/petition has never been read to her in her own language and it is unfair.
(2) If a litigant has not been informed fully of her rights and given opportunity to be heard with such assistance, it cannot be said that the assistance cannot be of any use.
(3) The authorities should take into account the real procedural unfairness throughout the case and put aside public policies of trying to dispose of non-refoulement claims as quickly as possible.
(4) The discriminatory act of authorities towards non-refoulement claimants on the basis of quick disposal is unacceptable and is detrimental to the spirit of the judicial system.

9. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal , from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

10. The applicant’s submissions pertaining to the lack of legal and language assistance as well as the discriminatory act of quick disposal of the case were not raised in the leave application before the Court of First Instance or in the appeal before the Court of Appeal. It is not open to the applicant to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings.

11. In any event, interpreter services were provided at hearings at every stage and at the time when the applicant was assisted by Duty Lawyer. The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire: Re Gurung Sagar[2019] HKCA 658 at §12. Besides, all court documents including the affirmation in support of the leave application, the notice of appeal and the notice of motion filed by the applicant as well as her written submissions were written in English. This indicates that either the applicant is herself conversant with the English language or that she has access to language assistance of her own if needed.

12. As for the argument relating to the lack of legal assistance, the Court of Appeal has repeatedly stated that an applicant of a non‑refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings^{^[1]}. The applicant already had the benefit of legal representation in presenting her case to the Director.

13. The unsubstantiated allegation of unfairness and discrimination in the quick disposal of non-refoulement claims is likewise without merit.

14. The applicant has not shown any or any sufficient merits in her intended appeal to the Court of Final Appeal. In particular, she has not demonstrated that the Court of Appeal was wrong in rejecting her appeal. She has also failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

15. We therefore dismiss her Notice of Motion filed on 20 January 2021 and refuse to grant leave to appeal to the Court of Final Appeal.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

(Thomas Au)
Justice of Appeal

The Applicant (Appellant), acting in person

[1] CACV 284/2017 Re: Paswan Shibu Lal, §21

CACV 260 /2020

[2021] HKCA 14

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 260 OF 2020

(ON APPEAL FROM HCAL NO 437 OF 2018)

________________________

BETWEEN
	Matbagan Imelda Manoden	Applicant
	and
	Immigration Department	Putative Respondent

________________________

Before: Hon Kwan VP, Cheung JA and Au JA in Court

Date of Written Submission: 12 October 2020

Date of Judgment: 12 January 2021

________________________

J U D G M E N T

________________________

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

1. This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan on 2 July 2020^{^[1]}. By his decision, the judge refused to grant leave to the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim. This appeal is dealt with on paper because the applicant has consented to a disposal on paper by the court without an oral hearing.

2. The applicant is a national of the Philippines. She is 44 years old. She last arrived in Hong Kong on 28 May 2011 as a visitor. She then overstayed and was arrested by the police on 4 February 2014. She lodged a non-refoulement claim which was received by the Immigration Department on 14 March 2014. Her claim was made on the basis that she would be tortured or killed by her husband’s uncle who accused the applicant of defaming him in 2010.

3. The applicant lodged a notice of appeal on 13 July 2020. Although she named both the Board and the Immigration Department as the defendants therein, the Board was not named as a party in the proceedings at the court below. Therefore, the Registrar of Civil Appeals directed on 24 September 2020 that this appeal will be processed as between the Immigration Department and the applicant.

4. The applicant lodged her submissions on 12 October 2020 pursuant to the directions of the Registrar of Civil Appeals given on 24 September 2020.

The Director’s decision

5. By a Notice of Decision dated 25 July 2016, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on the grounds including torture risk^{^[2]}, BOR 3 risk^{^[3]} and persecution risk^{^[4]}.

6. The Director was not satisfied that the applicant’s risk of facing ill-treatment by the uncle is real and foreseeable as there were only verbal threats. The Director considered that the threats were more of a gesture to express discontent rather than of killing the applicant. The Director further considered that the applicant’s problem with the uncle is solely a personal vendetta without any official involvement. The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.

7. By a Notice of Further Decision dated 14 July 2017, the Director rejected the applicant’s claim on BOR 2 risk ^{^[5]} in the absence of response from her to the invitation to submit additional facts which may be relevant to her non-refoulement claim.

The Board’s decision

8. The applicant appealed to the Board against the Director’s decisions. The Board conducted an oral hearing on 23 November 2017. The Board assessed that there is no real risk that the applicant will be harmed by the uncle or his associates if she returns to the Philippines. The Board also did not accept the applicant’s submissions at the hearing regarding the alleged fear of harm as a single parent because her children are aged 20, 18 and 15 respectively at the time of the hearing and there was no evidence to suggest that she would face any real risk of harm in the Philippines for such reason. The Board further assessed that internal relocation alternatives and reasonably effective police protection are available to the applicant in the Philippines. Thus, the Board held that the applicant’s appeal failed on all applicable grounds on 15 March 2018.

The intended judicial review

9. The applicant filed a Form 86 and an affirmation on 19 March 2018 to seek leave to apply for judicial review. In the Form 86 and supporting affirmation, she named the Immigration Department as the proposed respondent and stated that the decision made by the Department was the decision in respect of which relief is sought. However, the date of the decision given (15 March 2018) was the date of the Board’s decision. In dealing with her application for leave to apply for judicial review, the judge treated this as an application in respect of the Board’s decision.

10. Her ground for her intended judicial review is that her dangerous situation in the Philippines was disregarded.

The judge’s decision

11. The judge held that there is no error of law or procedural unfairness in the decisions of the Director and the Board, nor is there any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim. Therefore, the judge found that the applicant does not have any prospect of success in her intended judicial review and dismissed the leave application on 2 July 2020.

Grounds of appeal

12. The grounds of appeal put forward by the applicant in her written submissions may be summarized as follows:

(1)     The problem should not be regarded as a personal dispute as the family of her husband and their associates are activists and advocates of terrorism.
(2)     The police in the Philippines are biased and turn a blind eye to things like her problem so she will not be protected if she goes back.
(3)     The Board failed to look into her case based on the Filipino context. It ignored the problem that happens in the Philippines and only selectively quoted sources that fit its purpose.

Legal Principles

13. 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.

14. 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 issue at hand, the court should not usurp the role of the Board. 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). 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.

15. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

16. The applicant’s grounds of appeal are just bare assertions without particulars and evidence in support. In particular, she failed to provide evidence to rebut the Board’s findings or to demonstrate that there are errors of law or procedural unfairness or irrationality in the decision of the Board. She also failed to identify that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in his decision.

17. For the above reasons, there is no merit in the appeal and no reasonable prospect of success in the intended application for judicial review. We therefore dismiss the appeal.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

(Thomas Au)
Justice of Appeal

The Applicant (Appellant), acting in person

[1] [2020] HKCFI 1298

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3] 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).

[4] 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.

[5] 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).

MATBAGAN IMELDA MANODEN v. IMMIGRATION DEPARTMENT

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