Re Dela Cruz, Juliet Guerrero

CACV 272/2021

[2022] HKCA 56

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 272 OF 2021

(ON APPEAL FROM HCAL 2656 OF 2018)

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Before: Hon Au JA and Lisa Wong J in Court

Date of Judgment: 6 January 2022

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.Before the court is an application for leave to appeal to the Court of Final Appeal (“CFA”) against this court’s judgment dated 20 October 2021 ([2021] HKCA 1533) (“Judgment”), dismissing the applicant’s appeal from a decision dated 13 May 2021 ([2021] HKCFI 1364) by Deputy High Court Judge Bruno Chan (“Judge”), refusing to grant her leave to apply for judicial review of the decision made by the Torture Claims Appeal Board (“Board”) on 8 November 2018 concerning her non-refoulement claim (“NRF Claim”).

Paper disposal appropriate

2.Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing.  Having considered the material available to us, we agree that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.Under s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA from any civil judgment of the CA 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.

Applicant’s contentions in support of leave to appeal to CFA

4.In seeking leave to appeal to the CFA, the applicant asserted as follows in the notice of motion issued on 9 November 2021 (sic):

“I would like to infomr the Honourable Court that there is some error in law my decision. Decision maker by just relied on COL Information and my previous facts which were in favour while rejecting my claim. Acual life occur different situations then what is mentioned in COL Information. The Officer and cours prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

We observe that this is a proforma complaint made by numerous non-refoulement claimants, often without regard to the particular facts of one’s own case.

5.On 23 November 2021, the applicant filed written submission, by which she referred to ST v Director of Immigration (sic)[1] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514, Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex parte Smith[2] for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim; and (4) that the court may interfere with the exercise of an administrative discretion that is beyond the range of responses open to a reasonable decision-maker.  Reference was also made to s 37ZT of the Immigration Ordinance (Cap 115) (“s 37ZT”).

6.It is worthy of note that such written submission largely duplicated the applicant’s earlier written submission dated 3 September 2021 in support of the appeal before this court, save for the additional citations of (1) Wednesbury and Smith for the abovementioned fourth proposition and (2) s 37ZT.

Discussion

7.In our view, the applicant has not raised any or any arguable issue for determination by the CFA, whether of great, general or public importance or otherwise.  Nor do we see any scope to grant leave under the “or otherwise” limb.

(1)  The complaint in the notice of motion that the rejection of the NRF Claim was based entirely on unrealistic country of origin information (COI) was not made before the Judge or this court and, therefore, cannot now be raised to justify the grant of leave to appeal to the CFA.  See [9], [11] and [12] of the Judgment.  In any case, as noted in [8] of the Judgment, the Board dismissed the applicant’s appeal on the ground that the applicant had not told the truth in relation to critical elements of her claim.  Such conclusion was based on the Board’s assessment of the applicant’s credibility, without having to refer to any COI at all.

(2)  The further complaint in the notice of motion that the overwhelming evidence of violence towards minorities (presumably in the applicant’s home country) had been ignored is completely out of place.  The applicant allegedly feared harm from her former boyfriend and his stepbrother and stepsister. The NRF Claim was not at all premised upon the applicant being a member of any oppressed minority.

(3)  Turning to the written submission, we have already pointed out in [18] of the Judgment that the applicant had not elaborated on whether and, if so, how the legal principles she quoted had not been honoured in the processing of the NRF Claim.  That criticism remains valid.  We are also puzzled by the citation of s 37ZT as it is concerned with the late filing of a notice of appeal to the Board.  The applicant’s appeal to the Board was presented within time and was accepted by the Board without having to invoke s 37ZT.

8.As neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met, we dismiss the notice of motion.

The applicant, unrepresented, acted in person