RE PORTILLO JUANITO GARCES

CACV 2/2019

[2019] HKCA 781

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 2 OF 2019

(ON APPEAL FROM HCAL 343/2018)

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J U D G M E N T

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

1.  On 2 May 2019, this court (Barma JA and G Lam J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the judge”) on 24 December 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 his appeal from the decisions of the Director of Immigration rejecting his 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 16 May 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1. Failure to consider the psychological harm when befell on me, as a result of the facts stipulated in my claim, the judges decision was arrived to support of the TCAB and the Director’s decision, which doesn’t reflect my fear properly.

2. Failure to consider my fear, that my enemies still continue looking for me, they want to revenge against me, my life would be at risk, failure to consider my claim under BOR 2 and BOR 3 risk.

3. Failure to consider my claim in a holistic manner.

4. Failure to consider the concept of extended state acquiescence per para: 18 General Comment No. 2 of the United Nations Committee Against Torture”

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of the application on 29 May 2019.  In the written submission, the applicant reiterated the matters raised in the Notice of Motion.  He submitted that the court failed to take into account certain relevant consideration and took into account certain irrelevant consideration.

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 the Notice of Motion and written submission.

6.  The matters stated by the applicant in the 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.  Nor is any such question apparent to us from the matters he has raised in the Notice of Motion and written submission.  

7.  The applicant did not rely on the allegation that his enemies were still looking for him on appeal.  It is not open to the applicant to rely on this ground in this application without good reasons.  We have already addressed the other matters at [13] – [15] of our judgment.  Having considered the Notice of Motion and the written submission, we are of the view that these matters 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 16 May 2019 is dismissed.