ESTRADA MICHELLE DE LA ROCA v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION

CACV 563/2019

[2020] HKCA 850

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 563 OF 2019

(ON APPEAL FROM HCAL 546/2018)

_______________________________

BETWEEN

_______________________________

________________________

JUDGMENT

________________________

Hon Lam VP (giving the Judgment of the Court):

1.  On 1 September 2020, the Applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal (“CFA”) against the judgment of 21 August 2020. In that judgment Lam VP and Au JA struck out and dismissed the Applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 4 December 2019 which struck out and dismissed her second application for leave to apply for judicial review in respect of the same decision of the Torture Claims Appeal Board.

2.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the CFA at the discretion of this Court or the CFA if 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.

3.  In her Notice of Motion for leave to appeal to the CFA, the Applicant stated that she did not understand the system, that she did not know that she needed to inform the court of her previous application, and that she really is in trouble in the Philippines and the Torture Claims Appeal Board did not properly assess her case.

4.  Pursuant to the Court’s directions of 3 September 2020, Applicant lodged her written submissions on 15 September 2020. In those submissions, the Applicant stated that she did not intentionally abuse the court’s process, that she thought she needed to submit a new judicial review application after the first one was refused, and that it is not safe for her to return to the Philippines due to a pattern of extrajudicial killings by police and the president.

5.  As stated in the judgment of 21 August 2020, it is well established that re-litigation by a second judicial review application in respect of the same decision is an abuse of process.  The Applicant’s ignorance of the law cannot give rise to a reasonably arguable ground of appeal on the merit of her claim.  It is clear from her Form 86 and affirmation of 3 April 2018 lodged in the second judicial review (HCAL 546/2018) that she was assisted by someone familiar with judicial review concerning decisions of the Appeal Board.

6.  Her challenge of the Board’s decision had been dismissed by Deputy High Court Judge Woodcock in her first judicial review on 13 March 2018, against which she did not appeal.  She did not contest that she had received that decision.    

7.  In any event, we do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination in the present case.

8.  For these reasons, we refuse to grant leave to appeal to the CFA, and dismiss the Applicant’s Notice of Motion.