Busque Rovelyn Magayam v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

CACV 379/2019

[2021] HKCA 337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 379 OF 2019

(ON APPEAL FROM HCAL NO 940 of 2018)

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Before:  Hon Kwan VP, Hon Cheung JA and S T Poon J in Court

Date of Written Submissions: 7 January 2020

Date of Judgment:  24 March 2021

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JUDGMENT

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Hon S T Poon J (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 and S T Poon J) handed down on 13 December 2019 ([2020] HKCA 1391). The Court of Appeal dismissed her appeal against the decision of Deputy High Court Judge Josiah Lam on 2 August 2019 ([2019] HKCFI 1904) refusing 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 30 December 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged her written submissions on 7 January 2020. Having considered her submissions, it is considered appropriate to determine this application on paper.

3.The applicant is a national of Philippines who is 45 years old.  She came to Hong Kong as a visitor on 21 May 2013.  She subsequently overstayed and was arrested by the police on 19 August 2013.  She raised a non-refoulement claim on 7 March 2014 on the basis that she would be harmed or killed by the New People’s Army which is a powerful rebel group.  Her non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 25 June 2015 and 13 December 2016 respectively.  Her appeal against the Director’s decisions was dismissed by the Torture Claims Appeal Board (“the Board”) on 14 May 2018.

4.She filed a Form 86 on 25 May 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  Her application was refused by DHCJ Josiah Lam on 2 August 2019.

5.On 15 August 2019, the applicant filed a Notice of Appeal against the judge’s decision.  Her appeal was heard by the Court of Appeal on 10 December 2019.  It was dismissed by the Court of Appeal on 13 December 2019.  The applicant filed a Notice of Motion on 24 December 2019 for leave to appeal to the Court of Final Appeal. 

6.The applicant stated her grounds of appeal in the Notice of Motion which may be summarized as follows:

(1)  The judges erred in determining that the judge had not failed to appreciate the significance of her non-refoulement claim. The lack of assistance provided to her is an error of law or procedure, or evidence of procedural unfairness, or failure to adhere to a high standard of fairness;

(2)  The judges have not addressed the issues regarding (4) to (10) in her skeleton submissions dated 7 November 2019;

(3)  The deputy judge erred in claiming that she could find someone to assist her with interpretation / translation and dealing with English document “at all material times”;

(4)  The fairness of a non-refoulement claim should not be limited to just the process of determination but should rather extend to the determination itself.  To deprive the litigant of the right to understand what was decided against him will equal to a deprivation of the right to seek further avenues of appeal or review;

(5)  The judgment of the judges does not make logical sense at all;

(6)  The Board’s determination and the judgment of the Court of First Instance were never translated or read back to her.  As a result of such intentional ignorance in procedural fairness, the burden should thus be shifted to the judges to help determine the grounds;

(7)  The Court has not provided explanation as to why no language assistance can be provided to her and why it is not a valid point. Since this is an error in procedural fairness, her case should be reconsidered;

(8)  In dismissing her claim for lack of language assistance, her actual unique circumstances were not taken into account.  It is therefore Wednesbury unreasonable.

7.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.

8.The applicant complained that the judges have not addressed the issues regarding paragraphs (4) to (10) of her skeleton submissions dated 7 November 2019.  Those issues pertained to the lack of language assistance and legal assistance.  In fact, contrary to the applicant’s allegation, those issues have already been dealt with in paragraphs 15 to 22 of the judgment of the Court of Appeal dated 13 December 2019. The court has also specifically referred to the applicant’s written submissions in its judgment.  For instance, it was mentioned in paragraph 15 that “in her written submission, the applicant complained that the judge erred in assuming that she could find someone to assist her with interpretation/translation and deal with English documents at all material times”, which is the applicant’s argument in paragraph (6) of her written submissions, and it was stated in paragraph 21 of the judgment that “the applicant contended that the judge did not explain why he did not accept her assertion that she was not aware of the Director’s decision on BOR 2”, which is the applicant’s contention in paragraph (8) of her skeleton submissions.

9.The applicant’s other grounds of appeal also do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal.  In particular, she has 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).

10.Therefore, the Notice of Motion filed on 24 December 2019 should be dismissed.

The applicant, unrepresented, acted in person.