RE DE GUZMAN GENNELYN DELA CRUZ

CACV 179/2019

[2019] HKCA 1266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 179 OF 2019

(ON APPEAL FROM HCAL 668 OF 2018)

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J U D G M E N T

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

1.  This Court (Chu JA and Wong J) gave Judgment on 14 October 2019 and handed down the Reasons for Judgment on 21 October 2019 ([2019] HKCA 1165) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 4 March 2019 refusing her application for leave to apply for judicial review concerning her non‑refoulement claim.  The facts and issues in the appeal before the Court of Appeal, as well as the Court’s reasons for dismissing it, are set out in our Reasons for Judgment and will not be repeated here.

2.  The applicant subsequently applied, by a Notice of Motion on 28 October 2019, for leave to appeal to the Court of Final Appeal.  On 30 October 2019, the Registrar of Civil Appeals directed the applicant to lodge written submissions by 11 November 2019.

3.  The Registrar had further directed that the Notice of Motion shall be determined on paper only without an oral hearing.  We agree it is appropriate to determine this application on paper.

4.  The applicant stated in her Notice of Motion that (sic):

“1. the Assessor failed to consider my fear, that I would be face real risk if I return to my country of origin, my life would be at risk, in my claim the Assessor lack of consider my fear.

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

3.  Failure to consider and proper observations the Country of Origin Conditions (COI) information.”

5.  In her submission dated 5 November 2019, the applicant stated:

(a)    The Torture Claims Appeal Board and the Director of Immigration failed to comply with their duty to make sufficient inquiries into the country of origin conditions and adopted a passive approach which failed to meet the high standards of fairness as stated in the cases of Prabakar[1] and TK[2];

(b)   There was a failure to take into account relevant matters:

(i)   she received death threats from her enemies and they are still looking for her to take revenge against her, her life is in danger;

(ii)   the account she provided is true, the decision makers did not observe her fear, even if her risk is a result of private and personal dispute the risk to her life is too high if she is to return to her country; and

(iii)    her claim is not a private and personal matter, the decision makers totally failed to consider her claim under BOR 2 and BOR 3 risk.

6.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance[3] provides that leave to appeal to the Court of Final Appeal shall be granted at the discretion of the Court of Appeal or the Court of Final Appeal if the question in the appeal involves great general or public importance or otherwise ought to be submitted to the Court of Final Appeal for decision.

7.  No question of great general or public importance has been identified in the grounds in the Notice of Motion.

8.  Nor do we see any basis for granting leave on the “or otherwise” limb under section 22(1)(b).  The Judge had taken into account psychological strain of the applicant.  It is clear that relevant COI materials had been assessed.  BOR 2 risk[4] and BOR 3 risk[5] had also been considered by the Judge.  Indeed, consideration of BOR 2 risk was not a matter raised in the appeal.  Everything mentioned by the applicant had been canvassed and considered by the lower court, and by this court, save for BOR 2 risk as it was not raised in the appeal.[6]  We did not find any fault on the part of the consideration and decision of the Judge.

9.  In the circumstances, we cannot find any basis for granting leave to appeal to the Court of Final Appeal.

10.  By virtue of the above, the Notice of Motion dated 28 October 2019 is dismissed.