RE MECATE FARIDA REONDRES

CAMP 27/2022

[2022] HKCA 1726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 27 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 788 OF 2019)

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J U D G M E N T

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

1.  On 13 September 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 1 September 2022 (“the Judgment”)  ([2022] HKCA 1279). In the Judgment, we dismissed the applicant’s reapplication for extesnsion of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 5 November 2021, by which the Deputy Judge refused her application for leave to apply for judicial review ([2021] HKCFI 3275).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

4.  In her Notice of Motion, the applicant stated:

“DIRECTOR OF IMMIGRATION AND TORTURE CLAIMS APPEAL BOARD DISMISSED MY NONREFOULEMET CLAIM. I WAS NOT [SATISFIED] SO I CAME TO THE HIGH COURT FOR LEAVE TO APPEAL FOR JUDICIAL REVIEW. THE HIGH COURT AND THE COURT OF APPEAL DISMISSED BY APPLY. I WANT TO GO TO THE COURT OF FINAL APPEAL.” (sic)

5.  Pursuant to Practice Direction 2.1, the applicant lodged her written submissions on 27 September 2022.  In those submissions, she merely repeated the factual basis and procedural history of his non-refoulement claim.  She also claimed that both the Director of Immigration (“the Director”)  and the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  asked her for documents and that it was not possible for her to bring any documents as she had no friends who wanted to take a risk for her.  She further asserted that all her friends’ claims are of the same result and that she wanted to “fight for all” and requested permission to go to the Court of Final Appeal.

6.  In our view, her intended appeal is clearly without substance.  At the outset, the allegations made in her Notice of Motion and written submissions are all bare and vague allegations unsupported by any evidence.  In particular, her bare allegation that it was not possible for her to “bring any documents” before the Board or the Director as none of her friends were willing to bear the risk for her is a new point not previously raised before the Deputy Judge or this Court.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it; nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal: see Re Orense Marian Masangkay[2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh [2021] HKCA 870 at [7].  In any event, those are merely bare and vague allegations unsupported by any specific particulars or evidence in support.

7.  More importantly, her allegations mainly focused on the Director and the Board and she did not identify any specific error in the Judgment with sufficient particulars.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  She also failed to condescend upon particulars or provide any evidence in support of her allegation that “all her friends’ claims are of the same result”; or in any event, how her case has any relevance to her alleged friends’ claims. Accordingly, the applicant’s intended appeal plainly lacks merit.

8.  In any event, even taking her case at its highest, her allegations are fact-specific and do not relate to any question of great general or public importance.

9.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

10.  For these reasons, the applicant’s intended appeal has no merit.  Accordingly, the Notice of Motion filed on 13 September 2022 is dismissed.