RE GAITAN HERNANDEZ ARDUL

CACV 380/2021

[2022] HKCA 271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 380 OF 2021

(ON AN APPEAL FROM HCAL NO. 2949 OF 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 23 December 2021, this Court handed down our judgment ([2021] HKCA 1952) dismissing the applicant’s application for relief from the sanction imposed by the unless order made on 6 September 2021.

2.  On 3 January 2022, the applicant filed a notice of motion to apply for leave to appeal our judgment to the Court of Final Appeal. Despite the directions given by the Registrar of Civil Appeals, the applicant has not put in a written submission to support his application.

3.  Having considered the applicant’s notice of motion, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing. We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to the application for relief from sanctions and the applicant’s non-refoulement claim have been set out in our judgment. We will not repeat them.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, 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.

6.  The notice of motion stated that:

“(1) There is error in the decision. The decision maker just relied on Country of Origin Information (“COI”) which favours the rejection of my claims. As the actual situation is different from the COI.

(2) The immigration officer and the High Court overlooked the evidence of violence towards the minorities. Also, the Board has significantly relied on news the source of which is not officially recognised or is simply hearsay. The lack of credible information has result [sic] in groundless speculations.”

7.  The matters put forward by the applicant do not afford any basis for granting leave to appeal. Importantly, they all relate to the applicant’s claim and personal circumstances. It has not been shown that the intended appeal involves a question of great general or public importance. They also do not engage the reasons we gave for refusing the application (see [22] and [23] of our judgment).

8.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

9.  As the statutory requirements for giving leave to appeal are not met, we dismiss the notice of motion.