DOTE PURISIMA TAMAYO AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 181/2021

[2025] HKCA 912

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 181 OF 2021

(ON APPEAL FROM HCAL NO. 3007 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court)  :

1.  On 6 February 2023, this Court (Cheung JA and S T Poon J)  handed down a judgment dismissing the applicants’ appeal against the decision of Deputy High Court Judge P. Li given on 7 April 2021 in which he refused to grant leave to the applicants to apply for judicial review.

2.  The facts and issues of 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.  The applicants now apply, by a notice of motion filed on 20 February 2023, for leave to appeal against our judgment to the Court of Final Appeal.  The applicants stated in their notice of motion in summary the following three points : the first point being that the lower court made error in its interpretation or application of the relevant law. The second point being that the lower court decision was unreasonable or irrational. The third point being that principles of natural justice were violated as the lower court failed to provide a fair hearing.

4.  The applicants stated in their written submissions in summary the following points:

1.  The Court did not properly address all applicable grounds of non-refoulement.

2.  The Court did not consider the impact of COVID-19.

3.  The Court did not consider that the 1^st applicant’s daughter i.e. the 2^nd applicant was born out of wedlock and that she is a stateless person. Both of them will be in danger upon refoulement.

5.  Under section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (Cap. 484)  (‘Ordinance’)  leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

6.  The matters stated by the applicants in their notice of motion and written submissions do not constitute grounds for granting leave to the Court of Final Appeal.  The applicants have failed to identify any question of general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b)  of the Ordinance. Nor is there any such question apparent to us from the matters they have raised in their notice of motion and written submissions. 

7.  The points as mentioned in the applicants’ notice of motion are bare allegations unsupported by any explanations. For all three points mentioned in the applicants’ written submissions, there is no evidential basis for any of such allegations. Further, for points 2 and 3, they are new points that have not been raised before the Court of First Instance nor the Court of Appeal.

8.  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b)  of the Ordinance.

9.  For these reasons, the notice of motion filed on 20 February 2023 is dismissed.