RE DIMACULANGAN MERILO EVANO

CACV 95/2021

[2022] HKCA 131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 95 OF 2021

(ON APPEAL FROM HCAL NO. 1599 OF 2019)

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J U D G M E N T

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

I.  Leave to appeal to the Court of Final Appeal

1.  On 6 August 2021, this Court (Cheung JA and B Chu J)  handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge P Li given on 3 March 2021 in which he refused to grant leave to the applicant to apply for judicial review.

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

3.  The applicant now applies, by a notice of motion filed on 20 August 2021, for leave to appeal against our judgment to the Court of Final Appeal.  The applicant simply stated in her notice of motion that she wanted to challenge the decision.

4.  In the applicant’s written submissions (which was lodged out of time despite the directions of the Registrar of Civil Appeals dated 20 August 2021), she stated that if she went back to the Philippines she would be killed by her enemies.  She stated she was scared and no one was helping her and the government is corrupt.  She stated that her enemy had threatened her and threw stones to her window.  

II.  Legal principles

5.  Under section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (Cap. 484)  (‘Ordinance’)  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.

III.  Our view

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

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

IV.  Disposition

8.  For these reasons, the notice of motion dated 20 August 2021 is dismissed.

Applicant, unrepresented, acting in person

CACV 95/2021

[2021] HKCA 1140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 95 OF 2021

(ON APPEAL FROM HCAL NO. 1599 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge P Li of 3 March 2021 in which he refused to grant leave to the applicant to apply for judicial review.

2)  Factual background

2.1  The applicant is a national of the Philippines.  She came to Hong Kong on 7 October 2016 as a visitor and was allowed to stay until 14 October 2016.  She overstayed and surrendered herself to the Immigration Department.  She made a non-refoulement claim on 7 April 2017.

2.2  The basis of the applicant’s claim is that she would be harmed or killed by one PJ who accused the applicant of reporting to the Police that he had handed a bag of drugs to another person.

2.3  The background facts have been summarized in the decision of the Judge at [4] and [5].

3)  The Director’s Decision

3.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 15 October 2018.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (‘BOR 3’), Bill of Rights Article 2 (right to life)  risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  The Board decided not to hold an oral hearing and decided the case on paper.  The Board dismissed the applicant’s appeal on 16 May 2019 (‘the Board’s Decision’).

4.2  The Board found that the applicant’s purported three previous incidents of violence were all verbal threats and no physical violence was involved.  It was a private dispute matter.  The applicant did not seek state protection and there was absence of evidence to suggest that there was a lack of state protection.  There were no substantial grounds for believing that there is a real risk of harm.  

5)  Decision of the Judge

5.1  The applicant filed her Form 86 and supporting affirmation.  She alleged that the Board was wrong for not holding an oral hearing to determine her case.  At the applicant’s request the Judge held an oral hearing in December 2020 but the applicant said she had nothing to add and had no additional information to provide.   

5.2  The Judge held that it is incumbent upon the applicant to show specifically her complaint against the country of origin information relied upon by the Board.  A general broad complaint will not suffice.  He further held that the Board had read the documents and acted according to legal principles when deciding not to hold an oral hearing.  He rejected the argument that the applicant should have been invited to file further written submissions if oral hearing was not granted because if she had intended to do so, she would have ample time to provide written submissions but did not do so even at the oral hearing held in December 2020.  There was no error or procedural irregularity present.

6)  Grounds of appeal

6.1  In the notice of appeal, the applicant stated that she will face hardship if she to be refouled.  She claimed that the Board relied on source of news which was not officially recognized or was simply hearsay.  It also relied on cases which were outdated.

6.2  In the applicant’s written submissions, she referred to authorities and legal principles that are commonly cited in non-refoulement cases without showing how these principles relate to her case.

7)  Our view

7.1  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong  v Yusuf Yu[2018] HKCA 451 at [38] and [39]. 

7.2  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

7.3  We see no basis to disturb the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.

Applicant, unrepresented, appearing in person