Case Detail

FERNANDEZ LONILYN MABASA v. TORTURE CLAIMS APPEAL BOARD

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[2021] HKCA 704-EN-2021-05-21

FERNANDEZ LONILYN MABASA v. TORTURE CLAIMS APPEAL BOARD

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CACV 436/2020

[2021] HKCA 704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 436 OF 2020

(ON APPEAL FROM HCAL NO 540 OF 2018)

________________________

BETWEEN
	Fernandez Lonilyn Mabasa	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

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

Date of Written Submission: 8 April 2021

Date of Judgment: 21 May 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 March 2021 ([2021] HKCA 280). The Court of Appeal dismissed her appeal against the decision of Deputy High Court Judge Bruno Chan on 17 August 2020 ([2020] HKCFI 2003) 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 30 March 2021 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged her written submissions on 8 April 2021. Having considered her submissions, it is considered appropriate to determine this application on paper.

3. The applicant is a 60-year-old national of the Philippines. She first came to work in Hong Kong as a foreign domestic helper in 1984 and completed her last employment contract in 2004. She last arrived in Hong Kong on 14 December 2005 as a visitor. She subsequently overstayed and was arrested by the police on 14 September 2014. She lodged a non-refoulement claim on 15 September 2014 on the basis that she would be harmed or killed by a wealthy and influential family in her home town for political reasons.

4. Her non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 14 February 2017. Her appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board(“the Board”) on 9 February 2018.

5. She filed a Form 86 on 3 April 2018 to seek leave to apply for judicial review against the decision of the Board. Her application was refused by DHCJ Bruno Chan on 17 August 2020.

6. On 4 September 2020, the applicant filed a notice of appeal against the decision of DHCJ Bruno Chan. Her appeal was dealt with on paper because she has consented to a disposal on paper by the court without an oral hearing. It was dismissed by the Court of Appeal on 12 March 2021. She filed a Notice of Motion on 25 March 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

7. The applicant stated as her ground of appeal in her written submissions that the political persecution continues so she is seeking protection against the people who threatened her and her family.

8. She asked the court to allow her to “receive” more evidence how the danger and violence threatened her family and caused the death of her mother on 25 December 2020.

9. She attached to her written submissions a certification purportedly issued on 18 November 2020 by the Philippine National Police Regional Office 1 City Police Station certifying that the applicant had reported to the police she was allegedly threatened by “Unknown and Unidentified group of individual as to this date” in connection to her witnessing the killing of “certain City Vice Mayor” of her town Adolfo Aquino, and that political persecution continued in the province of Pangasinan and law enforcement has acknowledged “the clear and present danger”.

10. She also asked the court to give her time to allow her to work if leave is granted.

Analysis and disposition

11. 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.

12. In the present application, the applicant intends to seek leave to adduce new evidence but she has not filed a summons for such purpose or an affirmation to explain how the criteria for admission of new evidence are satisfied.

13. We do not think leave to adduce fresh evidence should be granted to the applicant as such new evidence does not satisfy the first two conditions in Ladd v Marshall [1954] 1 WLR 1489 at 1491. Even though the police certification was purportedly issued on 18 November 2020, it relates to a matter which first occurred long before she last arrived in Hong Kong on 14 December 2005, ie that she was threatened by “Unknown and Unidentified group of individual” in connection to her witnessing a killing. She has not provided any explanation why she was not able to apply for the certification earlier or why she did not seek leave to present the certification dated 18 November 2020 to the court when she filed her submissions for her appeal to the Court of Appeal on 10 December 2020.

14. Although the Court of Appeal has wider discretion to admit fresh evidence in an appeal of judicial review proceedings than in ordinary civil litigation, the applicant failed to show that the circumstances of this case are wholly exceptional or that a strong public interest existed to justify the exercise of such wider discretion: Dr Kwong Kwok Hay v Medical Council of Hong Kong (No. 2) [2007] 4 HKC 446.

15. In any event, even if the court were minded to accept such evidence as proof of political persecution in the Pangasinan province, it would not have assisted the applicant’s case as she failed to refute the Director’s findings that reasonable internal relocation alternatives are available in the Philippines and that it would not be unduly harsh for her to move to another part of the Philippines such as Manila where she had stayed before without incidents and where it would be difficult if not impossible for her enemy to locate her.

16. Further, it is unclear how the death of her mother on 25 December 2020 has relevance to her non-refoulement claim on the applicable grounds, other than the bare assertion that the alleged danger and violence caused her mother’s death.

17. The applicant has not shown any merits in her intended appeal to the Court of Final Appeal. 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).

18. We decline to grant leave to appeal to the Court of Final Appeal and dismiss her Notice of Motion filed on 25 March 2021.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

(Thomas Au)
Justice of Appeal

The Applicant (Appellant), acting in person

CACV 436/2020

[2021] HKCA 280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 436 OF 2020

(ON APPEAL FROM HCAL NO 540 OF 2018)

________________________

BETWEEN
	Fernandez Lonilyn Mabasa	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

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

Date of Written Submission: 10 December 2020

Date of Judgment: 12 March 2021

________________________

J U D G M E N T

________________________

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

1. The applicant lodged a Notice of Appeal on 4 September 2020 against the decision of Deputy High Court Judge Bruno Chan on 17 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 national of the Philippines. She is 60 years old. She last arrived in Hong Kong on 14 December 2005 as a visitor. She subsequently overstayed and was arrested by the police on 14 September 2014. She lodged a non-refoulement claim on 15 September 2014 on the basis that she would be harmed or killed by a wealthy and influential family in her home town for political reasons.

3. The applicant consented to the disposal of this appeal on paper by the Court of Appeal. She lodged her written submissions on 10 December 2020 pursuant to the directions of the Registrar of Civil Appeals.

The Director’s decision

4. By a Notice of Decision dated 14 February 2017, 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. Taking into account the absence of previous injury as well as the nature and frequency of past ill-treatment, the Director held that the applicant failed to establish that she would face a real and substantial risk as alleged upon her return to Philippines. The Director further considered that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.

The Board’s decision

6. The applicant appealed to the Board against the Director’s decision. The Board conducted an oral hearing on 17 November 2017. The Board found that the applicant is an entirely untruthful witness and there is no evidence to support her assertions of threats and harassment. Thus, the Board decided that the applicant is not entitled to non‑refoulement protection and rejected the appeal on 9 February 2018.

The intended judicial review

7. The applicant filed a Form 86 and an affirmation on 3 April 2018 to seek leave to apply for judicial review against the decision of the Board. She put forward the following grounds for her intended challenge:

(1) she was not provided with an interpreter during her oral hearing before the Board, she had to give evidence in English which is not her mother tongue and was thereby prejudiced in the opportunity to explain her claim fully to the Board;
(2) the adjudicator failed to understand properly the political abuses by those in power in the Philippines or to take into account its lack of human rights and zero tolerance for those who oppose the government when considering the applicant’s claim;
(3) the adjudicator failed to appreciate the difficulties which she had as a foreign domestic helper with language problem in Hong Kong to seek help or advice for non-refoulement protection from the relevant authorities when considering the credibility of her claim; and
(4) the adjudicator failed to take into account the impact on the applicant of threats made on her brother’s life in the consideration of her claim.

The judge’s decision

8. Ground (1) was rejected by the judge as it was the applicant’s own decision not to wait for the interpreter at the appeal hearing and there is nothing amiss arising from the appeal process before the Board being conducted without the assistance of an interpreter.

9. The judge found that Ground (2) is not relevant to her claim and it is not reasonably arguable as it is not supported by any particulars or elaborations.

10. Ground (3) failed as the Board was entitled to take into account the fact that she did not seek non-refoulement protection during the 9 years’ stay in Hong Kong but only lodged her claim after her arrest in 2014. The Board considered this together with other evidence in assessing the applicant’s credibility.

11. The judge found that Ground (4) is without merit as the applicant’s allegation was not supported by any reliable evidence and her brother died of pneumonia as shown in the death certificate which is contrary to her assertion.

12. As the applicant failed to show she has any prospect of success in her intended judicial review, the judge dismissed the leave application on 17 August 2020.

Grounds of appeal

13. The applicant’s grounds of appeal are attached to her Notice of Appeal which may be summarized as follows:

(1) there are political killings in the Philippines against people who advocate against and speak out on irregularities and corruption;
(2) people who threatened the applicant’s family are free on the street and can inflict danger to the applicant; and
(3) the applicant will continue her advocacy of responsible governance and support a leader that is voted by the people and who will be against the family clan that rules her home town.

14. In her written submissions, she further contended that her brother died while trying to collect evidence to send her to support her case and she is afraid of political persecution in her country so she came to Hong Kong where she has spent more than half of her life.

Legal Principles

15. 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.

16. 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.

17. 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

18. The applicant’s grounds of appeal are not viable to reverse the judge's decision. In particular, she failed to point out and demonstrate 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.

19. Furthermore, as pointed out by the judge and the Board, the applicant’s brother died from pneumonia as shown in the death certificate and there is nothing to show that it has anything to do with the applicant’s claim and her allegations. The applicant also failed to provide any evidence to refute the Board’s findings against her.

20. 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 2003

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

[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.