RE AI DODOH

CACV 350/2018

[2019] HKCA 282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 350 OF 2018

(ON APPEAL FROM HCAL 763/2017)

-----------------------------------

-----------------------------------

___________________

J U D G M E N T

___________________

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

1.  On 27 November 2018, this court (Barma JA and L Chan J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 27 July 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal from the decisions of the Director of Immigration rejecting her non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 3 December 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in her Notice of Motion that:

“1. Error/misdirection in law) Failing to take into account the consideration of psychological strain and threats to me, resulting from repeated threats to me in person and/or beating or threats to members of my family.

2. Procedural Impropriety) Failure to consider the concept of extended state acquiescence as expounded by Lam J (as he then was) in TK v Jenkins.

3. Irrationality) Failure to give reasons for assessment of lack of BOR 3 risk and/or insufficient basis to support conclusion of lack of BOR 3 risk.”

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of her application on 17 December 2018.  In her written submission, which is very similar to her written submissions for the substantive appeal before this Court, the applicant identified and complained of errors allegedly committed by the Board and the Director.

5.  Having considered the applicant’s Notice of Motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of her Notice of Motion and written submission.

6.  The matters stated by the applicant in her Notice of Motion and written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484. 

7.  The grounds raised in the Notice of Motion and submissions are directed towards the Board and the Director but not the judgment of this court or judge below.  For the reasons given at [13] of our judgment, we are of the view that these complaints are not reasonably arguable before the Court of Final Appeal.

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

9.  For these reasons, the Notice of Motion dated 3 December 2018 is dismissed.