MERIALES MARICEL GAMIZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 154/2023, [2024] HKCA 342

On Appeal From [2023] HKCFI 1113

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 154 OF 2023

(ON APPEAL FROM HCAL NO 750 OF 2019)

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J U D G M E N T

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

1.  On 11 May 2023, Deputy High Court Judge K W Lung made an order refusing to grant the Applicant leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 4 August 2017, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration dated 5 August 2016 and 22 May 2017 rejecting her non-refoulement claim.

2.  On 21 November 2023, this Court gave its judgment (“the CA Judgment”) dismissing the Applicant’s appeal against the said order of the Judge. The basic facts of this case and the Court’s reasons for dismissing the Applicant’s application have been set out in the CA Judgment and will not be repeated here.

3.  By Notice of Motion dated 25 March 2024, the Applicant applies for leave to appeal the CA Judgment to the Court of Final Appeal. Attached to the Notice of Motion is a document titled “Grounds of Appeal for Meriales Maricel Gamiz”. In that document, the Applicant makes submissions in support of her non-refoulement claim, but fails to identify any grounds of appeal against the CA Judgment.

4.  Under s 24 of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an application for leave to appeal shall be made by motion, and notice of a motion for this purpose shall be filed within 28 days from the date of the judgment to be appealed from. The Applicant has delayed substantially in filing the Notice of Motion, and has not given any explanation for her delay. Although the Court has power to extend the time for the Applicant to file the Notice of Motion, such power should not be exercised unless the Applicant can demonstrate that her intended appeal has a real prospect of success.

5.  The Applicant has failed to lodge written submissions in support of her application, contrary to the directions given by the Registrar of Civil Appeals dated 25 March 2024.

6.  Pursuant to paragraph 3 of Practice Direction 2.1, we determine the present application for leave to appeal on paper without an oral hearing.

7.  Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), 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.

8.  No question of great general or public importance involved in the intended appeal is identified in the Notice of Motion. We are unable to see any such question being involved in the intended appeal. The Applicant has not identified any error in the CA Judgment, or raised any viable ground of appeal against the CA Judgment. We are satisfied that the intended appeal has no merits and no reasonable prospect of success.

9.  There is also no basis to grant leave to appeal on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

10.  Accordingly, the application for leave to appeal is refused and the Notice of Motion is dismissed.