RE DELA CRUZ EILEEN TOLENTINO

CACV 245/2020

[2021] HKCA 384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 245 OF 2020

(ON APPEAL FROM HCAL NO 1579 OF 2018)

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J U D G M E N T

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

1.  By a judgment dated 29 December 2020[1], this Court (Yeung VP and Toh J) dismissed the applicant’s appeal against the decision of Campbell-Moffat J (“the Judge”) given on 23 June 2020 in HCAL 1597/2018 refusing to grant leave to her to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”) given on 27 July 2018 dismissing her petition/appeal from the decision of the Director of Immigration (“Director”) given on 24 January 2018 rejecting her non-refoulement claim.

2.  By a notice of motion dated 11 January 2021, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

“1. In my judgment, the Honourable Judges did not consider my fear, that I would face into my Country of origin, my fear that the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (The TCAB) and the Director did not proper assessed into my claim, that I would not safe in my Country.

2. Failure to proper observation into Country of origin condition (COI) information that the authority of my Country would not able to protect me.

3. Failure to consider my claim under BOR 3 risk.”

3.  In compliance with the directions made by the Registrar of Civil Appeals on 12 January 2021, the applicant should lodge her written submissions on 25 January 2021.

4.  In her written submissions, she set out the following:

(1)  The Board and the Director failed to make sufficient inquiries into the Country of origin information (“COI”) in respect of her case and adopted a passive approach in contravention of the high standard of fairness viz the discharging of the burden of proof as per Li CJ in Secretary for Security v Sakthevel Prabakar[2] and TK v. Michael C Jenkins and another[3].

(2)  The Board and the Director failed to take into account and /or give proper weight to relevant considerations and materials which he should have, and hence his decision is illegal.  Specially, they have failed to give due regard to (a) the fact that the judges support the Board’s decision which was improper as they did not follow the high standard of fairness to provide opportunity to her claim and (b) by the fact that her story is based on true story of her life, the decision makers do not observe her fear well and even though her risk is private and personal in nature, her life would still be at risk if refouled.

(3)  The Court of Appeal judgment stated that there is no merit and that she would not face real risk of harm if refouled and it appeared to her that her claim is not a private and personal matter but the decision maker did not observe it properly.

5.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

6.  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.

7.  In our judgment, nothing set out in the Notice of Motion and the written submissions can be construed as valid ground of appeal to Court of Final Appeal.  As explained at [12] of our judgment, the Board, after its careful consideration of the applicant’s claim, had come to the conclusion that based on the applicant’s account of event, her case was not qualified for non-refoulement protection on all applicable grounds.  The Board is perfectly entitled to reach its findings and conclusion and there were not valid public law grounds for us to intervene with the Board’s decision.

8.  For the reasons that we gave in our judgment of 29 December 2020, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the Notice of Motion and the written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

9.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss her Notice of Motion.