Fernandez Lonilyn Mabasa v. Torture Claims Appeal Board

CACV 436/2020

[2021] HKCA 704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 436 OF 2020

(ON APPEAL FROM HCAL NO 540 OF 2018)

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Before:  Hon Kwan VP, Cheung JA and Au JA in Court

Date of Written Submission: 8 April 2021

Date of Judgment:  21 May 2021

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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 March 2021 ([2021] HKCA 280). The Court of Appeal dismissed her appeal against the decision of Deputy High Court Judge Bruno Chan on 17 August 2020 ([2020] HKCFI 2003) 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 30 March 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged her written submissions on 8 April 2021.  Having considered her submissions, it is considered appropriate to determine this application on paper.

3.The applicant is a 60-year-old national of the Philippines.  She first came to work in Hong Kong as a foreign domestic helper in 1984 and completed her last employment contract in 2004.  She last arrived in Hong Kong on 14 December 2005 as a visitor.  She subsequently overstayed and was arrested by the police on 14 September 2014.  She lodged a non-refoulement claim on 15 September 2014 on the basis that she would be harmed or killed by a wealthy and influential family in her home town for political reasons.

4.Her non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 14 February 2017.  Her appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board(“the Board”) on 9 February 2018. 

5.She filed a Form 86 on 3 April 2018 to seek leave to apply for judicial review against the decision of the Board.  Her application was refused by DHCJ Bruno Chan on 17 August 2020.

6.On 4 September 2020, the applicant filed a notice of appeal against the decision of DHCJ Bruno Chan.  Her appeal was dealt with on paper because she has consented to a disposal on paper by the court without an oral hearing.  It was dismissed by the Court of Appeal on 12 March 2021.  She filed a Notice of Motion on 25 March 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

7.The applicant stated as her ground of appeal in her written submissions that the political persecution continues so she is seeking protection against the people who threatened her and her family.

8.She asked the court to allow her to “receive” more evidence how the danger and violence threatened her family and caused the death of her mother on 25 December 2020. 

9.She attached to her written submissions a certification purportedly issued on 18 November 2020 by the Philippine National Police Regional Office 1 City Police Station certifying that the applicant had reported to the police she was allegedly threatened by “Unknown and Unidentified group of individual as to this date” in connection to her witnessing the killing of “certain City Vice Mayor” of her town Adolfo Aquino, and that political persecution continued in the province of Pangasinan and law enforcement has acknowledged “the clear and present danger”.

10.She also asked the court to give her time to allow her to work if leave is granted.

Analysis and disposition

11.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.

12.In the present application, the applicant intends to seek leave to adduce new evidence but she has not filed a summons for such purpose or an affirmation to explain how the criteria for admission of new evidence are satisfied. 

13.We do not think leave to adduce fresh evidence should be granted to the applicant as such new evidence does not satisfy the first two conditions in Ladd v Marshall [1954] 1 WLR 1489 at 1491.  Even though the police certification was purportedly issued on 18 November 2020, it relates to a matter which first occurred long before she last arrived in Hong Kong on 14 December 2005, ie that she was threatened by “Unknown and Unidentified group of individual” in connection to her witnessing a killing.  She has not provided any explanation why she was not able to apply for the certification earlier or why she did not seek leave to present the certification dated 18 November 2020 to the court when she filed her submissions for her appeal to the Court of Appeal on 10 December 2020.

14.Although the Court of Appeal has wider discretion to admit fresh evidence in an appeal of judicial review proceedings than in ordinary civil litigation, the applicant failed to show that the circumstances of this case are wholly exceptional or that a strong public interest existed to justify the exercise of such wider discretion: Dr Kwong Kwok Hay v Medical Council of Hong Kong (No. 2) [2007] 4 HKC 446.

15.In any event, even if the court were minded to accept such evidence as proof of political persecution in the Pangasinan province, it would not have assisted the applicant’s case as she failed to refute the Director’s findings that reasonable internal relocation alternatives are available in the Philippines and that it would not be unduly harsh for her to move to another part of the Philippines such as Manila where she had stayed before without incidents and where it would be difficult if not impossible for her enemy to locate her.

16.Further, it is unclear how the death of her mother on 25 December 2020 has relevance to her non-refoulement claim on the applicable grounds, other than the bare assertion that the alleged danger and violence caused her mother’s death.

17.The applicant has not shown any merits in her intended appeal to the Court of Final Appeal.  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). 

18.We decline to grant leave to appeal to the Court of Final Appeal and dismiss her Notice of Motion filed on 25 March 2021.

The Applicant (Appellant), acting in person