RE HERMOSA LEA MALAWIS

CACV 261/2024, [2024] HKCA 979

On Appeal From [2024] HKCFI 1547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 261 OF 2024

(ON APPEAL FROM HCAL NO. 1673 OF 2019)

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JUDGMENT

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

1) The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (‘the Judge’) of 20 June 2024 in which he refused to grant leave to her to apply for judicial review.

2.  This appeal was scheduled to be heard on 15 October 2024. Despite the directions from the High Court to the applicant dated 13 August 2024, the applicant failed to lodge skeleton argument by the stipulated time. Accordingly the Court informed the applicant by letter dated 23 September 2024 that the hearing would be vacated and the Court would deal with this appeal on paper. After the case was vacated, the applicant filed her submission on 24 September 2024. The Court will take into consideration her submission in our decision.

2) Background

3.  The applicant is a national of the Philippines. She arrived in Hong Kong in February 2017, and her employment contract as a foreign domestic worker was prematurely terminated in September 2017. She did not depart and overstayed. On 20 April 2018, the applicant made a non-refoulement claim[1].

4.  The basis of the applicant’s claim is that she would be harmed or killed by her husband if she returns[2].

5.  The background facts have been summarized in the decision of the Judge at [5] to [8].

3) The Director’s Decision

6.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 5 October 2018. The decision covered Bill of Rights Article 2 (right to life) risk (‘BOR 2’), Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution[3] (‘the Director’s Decision’).

4) The Board’s Decision

7.  The applicant appealed against the Director’s decision to the Torture Claims Appeal Board (‘the Board’)[4]. After a hearing held on 20 March 2019, the Board dismissed the applicant’s appeal on 11 June 2019 (‘the Board’s Decision’).

8.  The Board’s finding is summarized in the decision of the Judge at [11] to [14].

5) Decision of the Judge

9.  The applicant filed his Form 86 and affirmation but no specific ground for seeking relief was provided, see the decision of the Judge at [15] to [16].

10.  The Judge held that the Board dismissed the applicant’s appeal as it did not accept her evidence. There was no valid ground to challenge the Board’s decision, see the decision of the Judge at [17]-[21].

6) Grounds of appeal

11.  The applicant in the notice of appeal stated that :

‘ I am not agree with the decision of the Court, because I will face hardship life. If I return back to my home country, I will be killed by my enemies, but the Torture Claims Appeal Board and the Director of Immigration did not scrutinize my claim properly. So my life is not safe in my home country.’

12.  We take the view that these are bare allegations with no further explanation as to how it is helpful to the applicant’s appeal.

13.  In the applicant’s written submissions, she stated general non-refoulement legal principle without specifying how they relate to the particulars of her case. They include the following :

(1) That the applicant ‘did not get the order on time from the Court of First Instance’ (when this is incorrect as the applicant had filed her notice of appeal on time);

(2) The Judge was wrong for not applying the principle of irrationality;

(3) High standards of fairness is required for determining torture claims but the Judge reviewed the matter lightly;

(4) The decision has a significant effect on the applicant’s torture claim;

(5) The Judge did not apply principle of procedural unfairness;

(6) The Judge did not exercise greater care despite the applicant submitted all the proofs;

(7) The Judge’s decision was wrong;

(8) The adjudicator did not give the applicant sufficient chance to arrange the relevant evidence;

(9) The applicant’s life and limb are in jeopardy and high standard of fairness must be demanded;

(10) The Board relied on source of news which was not officially recognized or simply hearsay;

(11) If the applicant is to return the state will not help her;

(12) If the applicant is to return she will be killed by her enemies; and

(13) The applicant wishes to bring new documents to support her case from her home country.

7) Our view

14.  We are of the view that the applicant’s appeal is without merits. Her grounds of appeal consist of bare allegations without particulars or specifics. The applicant provided no reasonably arguable grounds for judicial review. An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced. The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

15.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision. None of the arguments raised by the applicant shows the Judge has made any error of law.

16.  We see no basis to disturb the Judge’s decision. Accordingly, the appeal is dismissed.