RE VALDEZ EVELYN OCHOADA

CAMP116/2020

[2021] HKCA 707

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 116 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 1301/2018)

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J U D G M E N T

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

1.  On 4 February 2021, this court (Lam VP and Barma JA) handed down a judgment dismissing the (1) application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the judge”) on 16 April 2019 refusing leave to the applicant to apply for judicial review and (2) application to join the applicant’s son to the intended appeal by the applicant. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal from the decisions of the Director of Immigration rejecting her non‑refoulement claim.

2.  The facts and issues in the applications, 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 9 February 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“…there is some error in my decision. Decision maker just relied on COI information and my previous facts which were in favor while rejecting my claim. Actual life occur different situation the mentioned COI information. Immigration Officer and Hong Kong High Courts prefers to ignore the 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 calculate to reject my claims. Also I am requested to court I don’t have legal represented could you please provide me and consider my real situation. Bundle of thanks also safe my life as a human been.”

4.  The applicant lodged a written submission in support of the application on 22 February 2021.  In the written submission, the applicant submitted that:

“I want to inform court my life is dangerous in my home country in Philippines that’s why I am applying protection at Hong Kong I apply protection base on fear of my life in Philippines no have peace and Justice in Philippines Honestly I don’t have faith in Philippines authorities that’s why I am requested to court and immigration department please save my life. I am again beg to requested to Immigration Department and [High Court] please save my life.”

5.  In the written submission, the applicant also raised about 10 grounds against the Board’s Decision.  Because they are related to the Board’s Decision only and do not identify any error in our judgment, they are not viable grounds for an application for leave to appeal to the Court of Final Appeal.  We would therefore not discuss them in detail.

6.  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.

7.  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.  

8.  The applicant did not advance any ground against our decision to dismiss the application to join her son to the intended appeal.  All of the grounds are directed towards the dismissal of her application to extend time to appeal.  In relation to the ground based on the alleged danger upon her return, this ground is not by itself a valid ground for seeking leave for judicial review or leave to appeal.  In any event, the Board has already concluded that she is unlikely to be subject to any of the proscribed harms upon her return and that state protection would be available.  The applicant has failed to establish any public law error in the Board’s Decision.  In our view, this ground is not reasonably arguable before the Court of Final Appeal.

9.  As for the applicant’s request for legal representation, this court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15). Representation at later stages is merits based, and this is not procedurally unfair.  The applicant has failed to provide any specific reason why she should be provided with legal representation and in any event she should direct her request to other relevant Government departments and public bodies.

10.  As for the other grounds advanced in the Notice of Motion and the written submission, the applicant failed to supply sufficient particulars for all of those grounds, such as the evidence said to have been ignored by this court. We have carefully considered the documents provided by the applicant and we are not satisfied that any of the grounds relied on by her has any merit.

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

12.  For these reasons, the Notice of Motion dated 9 February 2021 is dismissed.