SELAMET HARIYANTI v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 469/2018

[2019] HKCA 260

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 469 OF 2018

(ON APPEAL FROM HCAL NO 1024 OF 2017)

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J U D G M E N T

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

1.  By a judgment dated 9 January 2019 ([2019] HKCA 21), the Court of Appeal (Yeung Acting CJHC and Poon JA) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan dated 7 September 2018 refusing to grant leave to her to apply for judicial review.  The intended judicial review was against the decision of the Director of Immigration dated 22 May 2017 and the decision of the Torture Claims Appeal Board dated 29 September 2017.  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 our judgment. We will not repeat them here.

3.  By a notice of motion dated 21 January 2019, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.

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

“ 1.   Procedural impropriety – failure to conduct sufficient inquiry into the relevant country of origin (“COI”) conditions.

2.   Procedural impropriety – failure to give proper reasons for assessment of lack of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk.”

5.  In compliance with the direction given by Master Au-Yeung on 22 January 2019, the applicant lodged her written submissions on 1 February 2019.  In the written submissions, the applicant reiterated her complaints against the Director and the Board as set out in her supporting affirmation filed on 7 December 2017 for her application for leave to apply for judicial review under HCAL 1024/2017.  They were duly considered and rightly rejected by the Judge at the lower court hearing.

6.  We have considered the applicant’s notice of motion and her written submissions.  Pursuant to paragraph 3 of Practice Direction 2.1, this application is processed on papers without any oral hearing.

7.  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.  The matters stated by the applicant in the Notice of Motion and written submissions do not constitute any ground for granting leave to appeal to the Court of Final Appeal. For the reasons given in our judgment at [12] and [13], we have concluded that the Judge had rightly found that the Director and the Board had adhered to the high standard of fairness and there was no error of law or procedural unfairness in either of them.  The applicant’s case was not reasonably arguable.

8.  For the reasons that we gave in our judgment of 9 January 2019, we did not see any prospect of success in the applicant’s intended appeal against the Judge’s order.  None of the questions raised by the applicant in the notice of motion or in her written submissions involve an arguable point or a question of great general or public importance.  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.

9.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss her notice of motion.