TAYLAN MYRA FE OVIEDO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 316/2020

[2021] HKCA 515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 316 OF 2020

(ON APPEAL FROM HCAL NO 2420 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  On 10 February 2021, this court (Barma JA and S T Poon J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the judge”) on 22 July 2020 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal from the decision of the Director of Immigration rejecting her non-refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicant subsequently applied, by a notice of motion dated 23 February 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that :

“I appeal against the decision made by the court. They disregard my dangerous situation should I be returned to my home country.”

4.  The applicant lodged a written submission in support of the application on 8 March 2021 and submitted that:

(1)  The Board was insensitive towards the situation in the Philippines;

(2)  The Board should not have held that the applicant was incredible; and

(3)  There are reports from Amnesty International and the Human Rights Watch to show that there are problems in the Philippines, including extrajudicial killings.

5.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

6.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484. Nor is any such question apparent to us from the matters she has raised. 

7.  As we have explained in [19] of our judgment, the applicant is not allowed to rely on new reports that were not referred to in the leave application before the judge.

8.  As for the other grounds of appeal advanced in the written submission, they are related to alleged errors in the Board’s Decision only and do not relate to any error in our judgment or the judgment below.  They are therefore not valid grounds for seeking leave to appeal to the Court of Final Appeal.

9.  The applicant claimed that this court ignored the dangerous situation she will face upon her return but she did not provide sufficient particulars for this ground.  Further, the Board has already held that it is safe for her to return and the applicant has failed to substantiate any public law error in the Board’s Decision.  In our view, this ground is not reasonably arguable before the Court of Final Appeal.

10.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.  For these reasons, the notice of motion dated 23 February 2021 is dismissed.