RE LOBATON MINDALIN DE ORO

CACV 273/2019

[2019] HKCA 1261

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 273 OF 2019

(ON APPEAL FROM HCAL 2958/2018)

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.  Before the court is a notice of motion filed on 2 October 2019 by the abovenamed applicant, applying for leave to appeal to the Court of Final Appeal (“CFA”) against this court’s judgment dated 30 September 2019 ([2019] HKCA 1087) (“Judgment”), dismissing the applicant’s appeal from a decision dated 13 June 2019 ([2019] HKCFI 1535) by Deputy High Court Judge K W Lung, refusing her leave to apply for judicial review of the decision dated 7 December 2018 of the Torture Claims Appeal Board (“Board”) concerning her non-refoulement claim.

Paper disposal appropriate

2.  Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing. We agree with the Registrar that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.  Under s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA, from any judgment of the CA in any civil cause or matter, whether final or interlocutory, if, in the opinion of the CA or the CFA, 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 CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

4.  First, in seeking leave to appeal to the CFA, the applicant asserted in the notice of motion as follows (sic):

“I would like to infomr the Honourable Court that there is some error of law in my decision. Decision maker just relied COL Information and my previous facts which were in favor while rejecting my claim. Actual life occur different situation then what is mentioned in COL information. The Officer and cours prefers to ignore overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

5.  Second, by the written submission lodged on 15 October 2019, the applicant referred to ST v Director of Immigration (sic)[1] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531, R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514, Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the well known propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim; and (4) that the court may intervene with the exercise of an administrative discretion where it is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker.

6.  However, the only attempted elaboration by the applicant as to whether and, if so, how the high standards of fairness have not been met in the processing of her claim was a one sentence assertion in paragraph (5) that the Board had acted in a procedurally unfair manner by not properly assessing her credibility.

7.  Towards the end of her written submission, in paragraph (8), the applicant also made a reference to s 37ZT of the Immigration Ordinance (Cap 115). This section clearly has no relevance to the applicant’s case as her appeal to the Board against the Director of Immigration’s rejection of her non-refoulement claim had not been out of time at all.

Discussion

8.  The applicant has plainly not raised any issue for determination by the CFA, whether of great, general or public importance or otherwise.

9.  Nor do we see any scope to grant leave under the “or otherwise” limb.

10.  Insofar as the applicant is suggesting in her notice of motion that the Department of Immigration officer and the Board adjudicator involved in the screening of her non-refoulement claim and the judges involved in determining the judicial proceedings arising therefrom have approached their tasks with a pre-disposition for dismissal with reference only to generic country of origin information (“COI”) without regard to the particular facts and evidence of the cases before them, the applicant has not advanced any or any proper basis for so suggesting. 

11.  Further, in the applicant’s case, as noted in [9] of the Judgment, the Board disbelieved that the applicant has any outstanding debts or that there is any real risk of her facing any harm from the claimed or other creditors when she returns to the Philippines. This is a finding of fact well within the province of the Board. The Board arrived at such finding after hearing the applicant and testing her evidence. The Board did not in fact refer to or rely on any COI in assessing the applicant’s credibility. As stated in [6] above, the applicant has, for the purpose of seeking leave to appeal to the CFA, made a bare assertion in her written submission that the Board had failed to properly assess her credibility. However, she has not given any particulars as to how the Board had allegedly so failed. The Board dealt with the applicant’s appeal in detail in a 16-page decision. In particular, in [19] to [66], the Board analysed the applicant’s testimony given, not just before it, but at different stages of the screening process, and provided detailed reasons to explain why it did not accept the applicant’s claim. We can discern no ground to question the Board’s analysis.

12.  As for the courts’ role, we have already explained in [17] and [18] of the Judgment that a judicial review is not a channel for a reconsideration of facts. The Court of First Instance (“CFI”) will scrutinise the Board’s decision for any errors of law, procedural unfairness or irrationality while the CA will examine the CFI judge’s decision in light of the ground of appeal advanced by the applicant, which should be premised upon the CFI judge having erred in law, omitted to consider a relevant matter or been otherwise plainly wrong.

13.  Neither the notice of motion nor the applicant’s written submission has really engaged the reasons given in the Judgment.

14.  As neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met, we dismiss the notice of motion.

[1] The correct citation should be ST v Betty Kwan.