TOMAD EVA BALABAG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 133 /2020

[2021] HKCA 687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 133 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 2561 OF 2018)

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J U D G M E N T

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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 and Chu JA) handed down on 3 March 2021 ([2021] HKCA 225). The Court of Appeal dismissed her application for leave to adduce a new ground of appeal and extension of time to appeal against the decision of Deputy High Court Judge K W Lung on 11 September 2019 ([2019] HKCFI 2249) refusing to grant 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 directed on 15 March 2021 that the Notice of Motion shall be determined on paper without an oral hearing.  The applicant lodged her written submissions on 25 March 2021.  Having considered her submissions, we consider it appropriate to determine this application on paper.

3.  The applicant is a national of the Philippines. She entered Hong Kong as a visitor on 12 August 2009.  She later overstayed and was arrested by the police on 22 February 2010.  She raised a torture claim on 26 April 2010 which was rejected by the Director of Immigration (“the Director”) on 5 July 2013.  She then lodged her non-refoulement claim on 18 July 2013. Her claim was made on the basis that she would be subjected to the threat by four armed strangers from the New People’s Army and their leader because she had witnessed their involvement in the murder of her neighbour and she would be killed if she reports the murder to the police.

4.  The applicant took out a summons in the court below to seek leave to adduce a new ground of appeal and extension of time to appeal against the decision of the judge.  Her application was late by about one week.  It was refused by the judge on 31 July 2020. 

5.  She renewed her application to the Court of Appeal for extension of time to appeal and leave to adduce a new ground of appeal on 17 August 2020.  Her application was dismissed by the Court of Appeal on 3 March 2021 as she failed to show any prospect of success in her intended appeal.

Grounds of appeal

6.  The applicant stated the following grounds of appeal in the Notice of Motion filed on 11 March 2021:

(1)     the judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director in refusing her application for judicial review;

(2)     the judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director whereby the Director was required to give reasons justifying the decision;

(3)     the decision maker just relied on the Country of Origin Information (“COI”) and the applicant’s facts which favour the rejection of her claim;

(4)     actual life occurs differently from the situation mentioned in the COI.  The Officer and the courts ignored the overwhelming evidence of the violence towards minorities searching for unrealistic silver lining.

7.  Her further submissions in writing may be summarized as follows:

(1)     high standards of fairness are required in the determination of a torture claim;

(2)     the Torture Claims Appeal Board (“the Board”) acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing her credibility.

Analysis and disposition

8.  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.

9.  The applicant’s grounds pertaining to her complaints against the Director’s decision are not viable grounds of appeal. The decision of the Director is not a decision that is susceptible to judicial review within this administrative structure once an appeal to the Board is pursued by a claimant, as the decision by the Board has superseded the decision of the Director and represents the final decision on the claim at the end of its processing: Re Moshsin Ali [2018] HKCA 549.  The applicant had confirmed at the hearing before the judge on 10 April 2019 that she had a fair hearing before the Board and that she had no comments on the Board’s findings.

10.  The rest of her grounds and submissions are just bare assertions without particulars or evidence in support.  She has not demonstrated that the Court of Appeal was wrong in dismissing her application and 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).

11.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 11 March 2021.