RE DIANTAN TERESITA GRACIA

CACV 396/2020

[2021] HKCA 954

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 396 OF 2020

(ON APPEAL FROM HCAL 309/2018)

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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 10 February 2021, this court (Barma JA and ST Poon J)  handed down a judgment dismissing the applicant’s appeal against the decision of Campbell-Moffat J (“the judge”)  on 12 August 2020 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 23 February 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1.  In this my judicial review judgment, the [judges] did not consider that the [Board] and the Directors failed to proper follow the standard fairness as provide the torture risk under part VIIC of the Immigration Ordinance and persecution risk of the UN Convention that my life still in risk upon return.

2.  The [Board] and the Directors did not proper assessed my fears under BOR 2 risk.

3.  failed to proper observation of the Country of Origin condition (COI)  information”

4.  The applicant lodged a written submission in support of the application on 8 March 2021.  She submitted that:

(1)  the Board and the Director failed to make sufficient inquiries into the country of origin condition and adopted a passive approach.  They failed to discharge the high standard of fairness;

(2)  decision makers failed to take into account relevant consideration / take into account irrelevant consideration;

(3)  the judges did not follow the high standard of fairness and should not have supported the Board’s Decision; and

(4)  even though her dispute may be private and personal dispute in nature, the decision maker should have regard to her fear of losing her life.  The judges should not have held that there was no merit in her claim.

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 documents filed.

6.  The matters stated by the applicant 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 she has raised.  

7.  All of the grounds are framed in general terms and the applicant has failed to supply sufficient particulars for all of the grounds, such as the country of origin information that was said to have been overlooked or the irrelevant consideration that was taken into account.  Further, these grounds do not engage with our reasons for dismissing the appeal at all, which are given in [14] – [17] of our judgment.  In our view, these grounds 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 23 February 2021 is dismissed.