Case Detail

CACV 351/2022

[2023] HKCA 620

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 351 OF 2022

(ON APPEAL FROM HCAL NO 2183 OF 2018)

________________________

BETWEEN

	CELIS LEONORA SACOR	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 Fung J in Court

Date of Judgment:

2 May 2023

________________________

J U D G M E N T

________________________

Hon Fung J (giving the Judgment of the Court):

Background

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 handed down on 30 January 2023 ([2023] HKCA 22). The Court of Appeal dismissed the applicant’s appeal against the decision of Deputy High Court Judge K W Lung dated 11 August 2022 ([2022] HKCFI 2492) refusing to grant leave to apply for judicial review against the decision of the Torture Claims Appeal Board concerning her non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the notice of motion shall be determined on paper without an oral hearing. The applicant lodged written submissions on 2 March 2023. Having considered the written submissions and the papers, it is considered appropriate to determine this application on paper.

Grounds of Appeal

3. In the Notice of Motion filed on 16 February 2023, the applicant stated that the judgments are not good for her and she wants to go to the Court of Final Appeal.

4. Her written submissions may be summarized as follows:

(1) There is threat to her life in her motherland. It is not possible for her to return;
(2) The adjudicator did not give her a lawyer and an interpreter. All her statements were not translated properly.

Analysis

5. 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.

6. The alleged improprieties of the adjudicator stated in the applicant’s written submissions were not submitted 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 this ground for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings.

7. In any event, contrary to her submissions, the applicant was provided with an interpreter at the hearing before the adjudicator[1]. As for the lack of legal representation, the Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings[2]. The applicant already had the benefit of legal representation in presenting her case to the Director of Immigration.

8. The rest of her grounds and submissions are not supported by evidence. She failed to show that the Court of Appeal was wrong in rejecting her appeal. She 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).

9. For the above reasons, the Notice of Motion filed on 16 February 2023 should be dismissed.

(Susan Kwan)	(Barnabas Fung)
Vice President	Judge of the Court of First Instance

The Applicant (Appellant), acting in person

[1] See §13 TCAB.

[2] Re Paswan Shibu Lal[2018] HKCA 249 at para 21.

CACV 351/2022

[2023] HKCA 22

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 351 OF 2022

(ON APPEAL FROM HCAL NO 2183 OF 2018)

________________________

BETWEEN

	CELIS LEONORA SACOR	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 Fung J in Court

Date of Judgment:

30 January 2023

________________________

J U D G M E N T

________________________

Hon Fung J (giving the Judgment of the Court):

1. On 11 August 2022, Deputy High Court Judge K W Lung refused to grant leave for the Applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement protection claim[1]. The Applicant file a Notice of Appeal against the said decision on 30 August 2022[2].

2. The Applicant is a national of the Philippines. She is 46 years old[3]. She last entered Hong Kong as a foreign domestic helper on 9 July 2014. After her employment contract was terminated prematurely on 9 November 2015, she did not leave Hong Kong and subsequently overstayed. On 19 January 2016, she surrendered to the Immigration Department. On 14 April 2016, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her husband and her creditor.

The Director’s decision

3. By a Notice of Decision dated 1 September 2017, the Director of Immigration (“the Director”) rejected the Applicant’s non-refoulement claim on all applicable grounds including torture risk[4], BOR 2 risk[5], BOR 3 risk[6] and persecution risk[7].

4. In the absence of ill-treatment by the Applicant’s husband and creditor in the past, the Director found that there is no substantial ground to believe that the Applicant would be in danger of being harmed or killed by her husband and her creditor upon her return to the Philippines and assessed that the future risk of harm is small[8]. The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk[9] .

The Board’s decision

5. The Applicant’s appeal against the Director’s decision was heard before the Board on 10 July 2018. In view of the significant inconsistences in the Applicant’s evidence and her failure to provide reasonable explanation, the Board did not accept that the Applicant has taken out any loan and did not accept that her husband, his family members or relatives intended to harm or kill the Applicant[10]. The Board found that there is no real risk of the Applicant facing any harm, arrest, charges or punishment if she returns to the Philippines[11]. Thus, the Board rejected the appeal on 7 September 2018.

The intended judicial review

6. The Applicant filed a Form 86 and an affirmation on 10 October 2018 to seek leave to apply for judicial review against the decision of the Board. The Applicant stated in her supporting affirmation that she cannot go back to her country because it is dangerous for her[12].

The judge’s decision

7. DHCJ K W Lung dealt with the application on paper as the Applicant did not request for an oral hearing[13].

8. The judge considered that the Applicant did not have any valid reason to challenge the Board’s decision and held that there is no error of law or procedural unfairness in the Board’s decision. As the Applicant failed to show any realistic prospect of success in her intended judicial review, the judge dismissed the leave application on 11 August 2022.

Grounds of appeal

9. In the Notice of Appeal filed on 30 August 2022, the Applicant stated that she found many errors in the Board’s decision but the court did not find any error so she wants to show some errors to the Court of Appeal to obtain leave to apply for judicial review.

Non-compliance with order for lodging of skeleton argument

10. Directions were given by the Registrar of Civil Appeals on 7 October 2022 for the Applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the Applicant fails to lodge skeleton argument in accordance with the directions, she shall be deemed to waive her right to have an oral hearing for this appeal and elect to have this appeal disposed of on paper. The Registrar has also made it clear that the hearing date fixed shall be vacated under such circumstances and the Court of Appeal shall proceed to consider this appeal on paper only without further notice.

11. The appeal was scheduled to be heard on 4 January 2023. The Applicant failed to lodge skeleton argument by the prescribed deadline on or before 7 December 2022. As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto. The court informed the Applicant that the hearing date has been vacated and that this appeal will be dealt with on paper by the Court of Appeal by letter dated 19 December 2022.

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. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the Applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

14. The Applicant stated that she found many errors in the Board’s decision but failed to identify any of the particular errors. Her ground of appeal is just bare assertion without any basis. She failed to 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.

15. Therefore, the appeal is devoid of merit and should be dismissed.

(Susan Kwan)	(Barnabas Fung)
Vice President	Judge of the Court of First Instance

The Applicant (Appellant), acting in person

[1][2022] HKCFI 2492; See [6-10]

[2] [1-3]

[3] DOB: 5.3.1976

[4] 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.

[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).

[6] 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).

[7] 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.

[8] §§13-15 Immd

[9] §§19-22 Immd

[10] §89 [31]

[11] §19 [31]

[12] See [12]

[13] §2 [6]

CELIS LEONORA SACOR v. TORTURE CLAIMS APPEAL BOARD/<br>NON-REFOULEMENT CLAIMS PETITION OFFICE

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