Case Detail

MAMAC MARY RESFIE LUMA YAG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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[2021] HKCA 257-EN-2021-03-10

MAMAC MARY RESFIE LUMA YAG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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CACV 388/2020

[2021] HKCA 257

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 388 OF 2020

(ON APPEAL FROM HCAL NO 2860 OF 2018)

________________________

BETWEEN
	Mamac Mary Resfie Luma Yag	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

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

Date of Judgment: 10 March 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 and Cheung JA) handed down on 24 December 2020 ([2020] HKCA 1063). The Court of Appeal dismissed her appeal against the decision of Deputy High Court Judge K W Lung on 6 August 2020 ([2020] HKCFI 1872) 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 9 February 2021 that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance of the direction for the applicant to lodge written submissions or the expiry of the time for complying with the direction being 22 February 2021. The applicant failed to lodge written submissions as directed. Having considered the papers, we think it is appropriate for the Court of Appeal to determine this application on paper and will proceed accordingly.

3. The applicant is a Filipino national. She is 42 years old. She came to Hong Kong as a visitor on 24 August 2014. She subsequently overstayed and surrendered to the Immigration Department on 24 June 2015. She lodged a non-refoulement claim on 27 July 2015 on the basis that she would be harmed or killed by her ex-boyfriend and three unknown men who looked for her ex-boyfriend.

4. Her non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 15 February 2018. Her appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board(“the Board”) on 30 November 2018.

5. She filed a Form 86 on 13 December 2018 to seek leave to apply for judicial review against the decision of the Director. DHCJ Lung amended the Form 86 by replacing the Director with the Board as the putative respondent and replacing the Immigration Department with the Director as the putative interested party, pursuant to Order 20 rule 8 of the Rules of the High Court. The application was refused by the judge on 6 August 2020.

6. On 18 August 2020, the applicant filed a notice of appeal against the decision of DHCJ Lung. The applicant consented to the disposal of her appeal on paper. Her appeal was dismissed by the Court of Appeal on 24 December 2020. The applicant filed a Notice of Motion on 8 February 2021 for leave to appeal to the Court of Final Appeal.

7. In her Notice of Motion, the applicant stated the following grounds of appeal:

(1) her problem in her country is true and it is impossible for her to return;
(2) it is her fundamental right to stay in Hong Kong and to live in the world.

8. Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making an application for leave to appeal.

9. Section 22(1)(b) of the Ordinance 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. In the present application, the applicant was late for more than two weeks. Good grounds have to be shown by the applicant for the court to grant her an extension of time. The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

11. As the applicant has not provided any explanation for her delay in her affirmation, there is no good reason why the Court of Appeal should grant an extension of time to file the Notice of Motion.

12. In any event, the applicant has not shown any or any sufficient merits in her intended application for leave to appeal to the Court of Final Appeal. In particular, she has not demonstrated that the Court of Appeal was wrong in dismissing her appeal and she has 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).

13. We therefore refuse to give leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 8 February 2021.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

(Thomas Au)
Justice of Appeal

The Applicant (Appellant), acting in person

CACV 388 /2020

[2020] HKCA 1063

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 388 OF 2020

(ON APPEAL FROM HCAL NO 2860 OF 2018)

________________________

BETWEEN
	Mamac Mary Resfie Luma Yag	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP and Cheung JA in Court

Date of Written Submission: 28 October 2020

Date of Judgment: 24 December 2020

________________________

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 K W Lung on 6 August 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.

2. The applicant is a Filipino national. She is 42 years old. She came to Hong Kong as a visitor on 24 August 2014. She has overstayed since 28 August 2014. On 24 June 2015, she surrendered to the Immigration Department. She lodged a non-refoulement claim on 27 July 2015. Her claim was made on the basis that she would be harmed or killed by her ex-boyfriend and three unknown men who looked for her ex-boyfriend.

3. The applicant lodged a Notice of Appeal on 18 August 2020 and consented to the disposal of her appeal on paper by the Court of Appeal. Pursuant to the direction of the Registrar of Civil Appeals on 12 October 2020, she has lodged her submissions on 28 October 2020.

The Director’s decision

4. By a Notice of Decision dated 15 February 2018, the Director of Immigration (“the Director”) rejected the applicant’s non‑refoulement claim on all applicable grounds including torture risk^{^[2]}, BOR 2 risk^{^[3]}, BOR 3 risk^{^[4]} and persecution risk^{^[5]}.

5. The Director considered that the alleged ill-treatment had not attained a minimum level of severity such that non-refoulement protection is warranted. The applicant’s problem with her ex-boyfriend is a private matter within a domestic context and she only received verbal threat once from the unknown men but had never been physically injured by them. The Director assessed that the behaviour of her ex-boyfriend and the unknown men showed no real intention to severely harm or kill her. There is nothing to show that the state was involved in, or was indifferent to or had provided any form of encouragement to her ex-boyfriend or the 3 unknown men in threatening, assaulting or killing her. The Director also held that state protection and internal relocation option are available which further lower or negate the perceived risk of harm, if any.

The Board’s decision

6. The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 20 September 2018. The Board considered that the past ill-treatment did not attain a minimum level of the requisite severity, the future risk of harm upon her return to the Philippines was assessed to be small, there is no evidence of official acquiescence and proper complaints and follow-up forums are available in the Philippines. Thus, the Board held that the applicant’s claim fails on all applicable grounds and rejected the appeal on 30 November 2018.

The intended judicial review

7. The applicant filed a Form 86 and an affirmation on 13 December 2018 to seek leave to apply for judicial review against the decision of the Director on the ground that her dangerous situation was disregarded.

8. The judge amended the Form 86 by replacing the Director with the Board as the putative respondent and replacing the Immigration Department with the Director as the putative interested party, pursuant to Order 20 rule 8 of the Rules of the High Court.

The judge’s decision

9. The judge held that there is no error of law or procedural unfairness in the Board’s findings, and did not consider the findings of the Board in any respect open to challenge as Wednesbury unreasonable or irrational. As the applicant failed to show any reasonable prospect of success in her intended judicial review, the judge dismissed the leave application on 6 August 2020.

The grounds of appeal

10. In her Notice of Appeal, the applicant stated as her grounds of appeal that she would like to review the Board’s decision as they disregarded her dangerous situation.

11. In her written submissions, she elaborated on the grounds as follows:

(1) She will be in grave danger should she be returned to the Philippines but the judge believed that she will not face any danger and dismissed her application.
(2) The Board believes that this is a personal dispute. She was beaten and harassed by her ex-boyfriend. This is a form of gender-based violence and should not be counted as personal.
(3) The police in the Philippines turns a blind eye on domestic violence. Therefore, she will not be protected if she goes back.
(4) The Board failed to look into her case based on the Filipino context. It ignored the problems that happen in the Philippines and only selectively quoted the sources that fit its purpose.

Legal Principles

12. 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.

13. 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 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.

14. 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

15. The applicant failed to demonstrate 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 in his decision. In the present case, the applicant has never sustained any injuries to the requisite severity for substantiation of a non-refoulement claim. She has not adduced any evidence to show a consistent pattern of gross, flagrant or mass violation of human rights in the Philippines. She also failed to establish that she faces a real risk of danger against her life or has a well-founded fear of being persecuted.

16. For the above reasons, there is no merit in the appeal and no realistic prospect of success in the intended application for judicial review. We therefore dismiss the appeal against the refusal of leave to apply for judicial review.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

The Applicant (Appellant), acting in person

[1] [2020] HKCFI 1872

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[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 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.

[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.