RE RAI GITA

CACV 142/2020

[2021] HKCA 1114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 142 OF 2020

(ON APPEAL FROM HCAL 802/2017)

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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 1 April 2021, this court (Poon CJHC, Yeung VP and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Campbell-Moffat J (“the judge”) on 15 May 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 decision 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 filed on 9 April 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“I would like to inform the [court] that there is some error in law in my decision. Decision maker just relied on COI information and my previous facts which were in favor while rejecting my claim. Actual life occur different situation then what is mentioned in COI information. The Officer and courts prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

4.  The applicant failed to comply with Practice Direction 2.1 and did not lodge the skeleton submission within time, despite having been reminded of the same by the direction made by the Registrar of Civil Appeals on 13 April 2021.  The applicant was therefore debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

5.  Having considered the applicant’s Notice of Motion, 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.  We note that, hitherto, the applicant has not raised any complaint based on the use of country of origin (COI) information, ignorance of the violence towards minorities or bias.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]

8.  In our view, these grounds are not reasonably arguable before the Court of Final Appeal.

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

10.  For these reasons, the Notice of Motion dated 9 April 2021 is dismissed.