RE NOVI AZIZAH AND OTHERS

CACV 289/2021

[2022] HKCA 1400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 289 OF 2021

(ON APPEAL FROM HCAL NO 400 OF 2019)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  This judgment concerns the 1^st Applicant only. 

2.  On 13 December 2021, this court handed down judgment ([2021] HKCA 1910)  dismissing the 1^st Applicant’s appeal against an order of DHCJ P Li (“the Judge”)  given on 20 May 2021 refusing to grant leave to the 1^st Applicant and her children the 2^nd, 3^rd and 4^th Applicants to apply for judicial review in respect of their non-refoulement claim (“the Judge’s Decision”).  

3.  On 1 June 2021, all four Applicants had filed a Notice of Appeal to appeal against the Judge’s Decision.  In the judgment of this court of 13 December 2021, we dismissed the 1^st Applicant’s appeal, but adjourned the hearing of the appeals of the 2^nd, 3^rd and 4^th Applicants to a date to be fixed, expressing in the judgment our hope that in the meantime they will renew their applications for legal aid in light of the contents of our judgment. 

4.  As for the 1^st Applicant herself, the facts and issues in her appeal before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

5.  On 24 December 2021, the 1^st applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal.

6.  The Notice of Motion contains the following grounds of appeal:

(1)  The 1^st applicant’s problem as raised in her claim is based on the true story of her life, and she does not want to return to her own country.

(2)  The judges in the Court of Appeal supported the Decisions made by the Torture Claims Appeal Board (“the Board”)  and the Director of Immigration (“the Director”).  There was a lack of inquiries about her claim on all applicable grounds.

(3)  The decision makers had failed to consider the country of origin information showing that the state authority is unable to protect her.

(4)  The Board and the Director had failed to take into account relevant considerations and took into account irrelevant consideration when assessing her claim.

7.  Pursuant to the directions of the Registrar of Civil Appeals, the 1^st applicant lodged her written submissions on 7 January 2022.  This Notice of Motion is determined on paper without an oral hearing, which we consider appropriate.

8.  In her written submissions, she advanced the following grounds for her intended appeal:

(1)  Her appeal is related to 2^nd, 3^rd and 4^th Applicants and her children will face risk upon refoulement.

(2)  The Director and the Board failed to take into account relevant considerations or took into account irrelevant considerations when assessing the 1^st to 4^th Applicants’ claims and failed to give proper weight to relevant considerations and materials and therefore their decisions are illegal.  In particular:

(a)  the Judge’s Decision and the Board’s decision were improper as they did not follow high standards of fairness; 

(b)  the decision makers failed to observe her fear; even though her claim was private and personal in nature, her life is at risk if refouled; however, she also submitted that it appeared to her that her claim is not a private and personal matter;

(3)  The Judges in the Court of Appeal did not consider there is merit in her claim and did not focus on her fear that her life would be at risk if refouled.

9.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance provides that leave to appeal to the Court of Final Appeal may be granted 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 Court of Final Appeal for decision.

10.  The matters put forward for the 1^st Applicant’s intended appeal did not engage with the reasons in the judgment of this court. No question of great general or public importance has been identified as required by s.22(1)(b)  of the HKCFAO.  

11.  Nor do we see any basis for leave under the “or otherwise” limb under section 22(1)(b).

12.  By reason of the above, the Notice of Motion filed by the 1^st applicant on 24 December 2021 is dismissed.