MATBAGAN IMELDA MANODEN v. IMMIGRATION DEPARTMENT

CACV 260/2020

[2021] HKCA 197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 260 OF 2020

(ON APPEAL FROM HCAL NO 437 OF 2018)

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J U D G M E N T

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

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Cheung JA and Au JA) handed down on 12 January 2021 ([2021] HKCA 14). The Court of Appeal dismissed her appeal against the decision of Deputy High Court Judge Bruno Chan on 2 July 2020 ([2020] HKCFI 1298) dismissing the application for leave to apply for judicial review concerning her non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 22 January 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged her written submission on 3 February 2021.  Having considered her submission, we think it appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of the Philippines of 44 years old.  She last arrived in Hong Kong on 28 May 2011 as a visitor and subsequently overstayed.  She lodged a non-refoulement claim which was received by the Immigration Department on 14 March 2014.  Her claim was made on the basis that she would be tortured or killed by her husband’s uncle who accused her of defaming him in 2010. 

4.  Her non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 25 July 2016 and 14 July 2017.  Her appeal against the Director’s decisions was dismissed by the Torture Claims Appeal Board(“the Board”) on 15 March 2018. 

5.  She filed a Form 86 on 19 March 2018 to seek leave to apply for judicial review, which was treated by the court as an application in respect of the Board’s decision.  Her application was refused by DHCJ Bruno Chan on 2 July 2020.

6.  On 13 July 2020, the applicant filed a notice of appeal against the decision of DHCJ Bruno Chan.  As the applicant consented to a disposal on paper by the court without an oral hearing, her appeal was dealt with on paper.  It was dismissed by the Court of Appeal on 12 January 2021. The applicant filed a Notice of Motion on 20 January 2021 for leave to appeal to the Court of Final Appeal.

7.  The applicant stated as her grounds of appeal in the Notice of Motion that she disagrees with the decisions of the authorities and the court because her life is still in danger in her homeland in the Philippines.

8.  Her contentions in her written submissions may be summarized as follows:

(1)  The applicant was never provided with proper legal and language assistance.  The determination of the appeal/petition has never been read to her in her own language and it is unfair.

(2)  If a litigant has not been informed fully of her rights and given opportunity to be heard with such assistance, it cannot be said that the assistance cannot be of any use.

(3)  The authorities should take into account the real procedural unfairness throughout the case and put aside public policies of trying to dispose of non-refoulement claims as quickly as possible.

(4)  The discriminatory act of authorities towards non-refoulement claimants on the basis of quick disposal is unacceptable and is detrimental to the spirit of the judicial system.

9.  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.

10.  The applicant’s submissions pertaining to the lack of legal and language assistance as well as the discriminatory act of quick disposal of the case were not raised in the leave application before the Court of First Instance or in the appeal before the Court of Appeal.  It is not open to the applicant to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings. 

11.  In any event, interpreter services were provided at hearings at every stage and at the time when the applicant was assisted by Duty Lawyer.  The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire: Re Gurung Sagar [2019] HKCA 658 at §12.  Besides, all court documents including the affirmation in support of the leave application, the notice of appeal and the notice of motion filed by the applicant as well as her written submissions were written in English.  This indicates that either the applicant is herself conversant with the English language or that she has access to language assistance of her own if needed. 

12.  As for the argument relating to the lack of legal assistance, the Court of Appeal has repeatedly stated that an applicant of a non‑refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings^[1]. The applicant already had the benefit of legal representation in presenting her case to the Director.

13.  The unsubstantiated allegation of unfairness and discrimination in the quick disposal of non-refoulement claims is likewise without merit.

14.  The applicant has not shown any or any sufficient merits in her intended appeal to the Court of Final Appeal.  In particular, she has not demonstrated that the Court of Appeal was wrong in rejecting her appeal. She has also failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b). 

15.  We therefore dismiss her Notice of Motion filed on 20 January 2021 and refuse to grant leave to appeal to the Court of Final Appeal.