RE SALVA MARITES CORDERO

CACV 456/2018

[2019] HKCA 717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 456 OF 2018

(ON APPEAL FROM HCAL 22 OF 2018)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  By a judgment dated 28 January 2019 ([2019] HKCA 123) (“the Judgment”), this court (Hon Chu, Au JJA and Andrew Chan J) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 7 September 2018 refusing her leave to apply for judicial review (“the Deputy Judge’s Decision”).  The intended judicial review was against the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 29 December 2017 dismissing the applicant’s appeal against decisions of the Director of Immigration (“the Director”) dated 10 June 2015 and 6 June 2017 rejecting her non-refoulement claim.  The applicant now seeks leave to appeal to the Court of Final Appeal.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.

3.  By a Notice of Motion dated 4 February 2019, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

4.  In the Notice of Motion, the applicant set out the following grounds:

“I would like to infomr [sic] the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in the COL Information. The Officer and cours [sic] 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.”

5.  In compliance with the direction given by Master Au-Yeung on 8 February 2019, the applicant lodged her written submission on 18 February 2019.  In her written submission, the applicant quoted some passages from ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the “high standards of fairness” required of a decision-maker in the determination of a non‑refoulement claim.  She further submitted that the Adjudicator (ie, the Board) acted in a procedural unfair manner and failed to access her credibility properly.  She also complained the Wednesbury unreasonableness of the decision-makers and cited Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence exp Smith [1996] QB 517 in support.

6.  We have duly considered the applicant’s Notice of Motion and her written submission.  Pursuant to paragraph 3 of Practice Direction 2.1, we proceeded to consider this application on papers without any oral hearing.

7.  First of all, the applicant’s written submission on the issue of “high standards of fairness” was essentially the same as the one she submitted before this Court on 5 December 2018 when she applied leave to appeal against the Deputy Judge’s Decision.  We have dealt with them at [10] and [11] of the Judgment.

8.  Secondly, the rest of the grounds in relation to Wednesbury unreasonableness were against the decision makers (ie, the Director and the Board).  The Deputy Judge had found that there was no error in law or procedure in the decision making process: see [14] of the Deputy Judge’s Decision.  We do not find any legal error in his decision: see [13] of the Judgment.

9.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, 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.  For the reasons that we gave in the Judgment, we did not see any prospect of success in the applicant’s intended appeal against the Deputy Judge’s Decision.  None of the questions raised by the applicant in the notice of motion or in her written submission involve any question of great general or public importance such that it ought to be submitted to the Court of Final Appeal for decision.  Nor do we find any basis to grant leave on the “otherwise” limb.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484) are not met.

10.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss her Notice of Motion.