RE MORILLO ELEJA LOQUINARIO

CACV 257/2020

[2021] HKCA 398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 257 OF 2020

(ON APPEAL FROM HCAL NO 1773 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 Deputy High Court Judge K.W. Lung (“the Judge”) given on 7 July 2020 in HCAL 1773/2018 refusing to grant leave to her to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office (“the Board”) given on 15 August 2018 dismissing her petition/appeal from the decision of the Director of Immigration (“Director”) given on 15 March 2018 rejecting her non-refoulement claim.

2.  By a Notice of Motion dated 8 January 2021, the applicant now seeks leave to appeal to the Court of Final Appeal on the following grounds:

“1. In my Judgement, the Appellate Judges did not proper consider of my fear in my claim, the authority Torture Claims Appeal Board (the TCAB) and the Director failed to proper observation in to my claim, that I would face still risk upon refoulement to my country of origin.

2. Failure to consider the Country of origin conditions (COL) information that I would face genuine risk upon refoulement to my Country of origin.

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

3.  In compliance with the directions made by the Registrar of Civil Appeals on 13 January 2021, the applicant lodged her written submissions on 20 January 2021.

4.  In the written submissions, she advanced 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 they should have, and hence their decisions are illegal.  Specially, this Court has failed to give due regard to (a) the fact that the judge supported the Board’s decision which was improper as it did not follow the high standard of fairness in her claim; (b) the fact that her story is based on true story of her life, but the decision makers did not properly consider her fear; and (c) even though her risk is private and personal in nature, her life would still be at risk if refouled.

(3)  This Court’s judgment stated that her appeal has no merit and that she would not face real risk of harm if refouled, but her claim is not a private and personal matter which the decision maker did not consider 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] to [16] of our judgment, the applicant’s claim was premised on domestic violence by her husband and by the fact that the applicant had separated from her husband since 1996, the Board had fully considered the applicant’s case and came to the right conclusion that she did not have any well-founded fear of being persecuted nor she would face any genuine and substantial risk of being subjected to torture if refouled.  We see no merit in intended appeal at all.

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.

[1] [2020] HKCA 1069

[2] (2004) 7 HKCFAR 187

[3] [2013] 1 HKC 526