RE BADINAS GEMMA LEARDO

CACV 634/2020

[2021] HKCA 1264

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 634 OF 2020

(ON APPEAL FROM HCAL NO. 2197 of 2018)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  On 27 July 2021, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 20 November 2020 which refused to give her leave to apply for judicial review.    

2.  On 5 August 2021, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  She has also put in a written submission dated 19 August 2021 to support her application.

3.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  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.

6.  The notice of motion stated the following in support of the application:

“I would like to reject the decision made by the Court on my case. The judge has accepted that I was being abused and I was in danger. But based on the decision by Torture Claims Appeal Board that there is no evidence to support that my risk is still there. The assessment is disregarding the local context of Philippines. Therefore, I would like to reject and review the court’s decision.”

7.  The written submission is identical to the one she put forward in support of her appeal before this Court (see [11] of our judgment).

8.  We are of the view that the matters stated in the notice of motion and the written submission do not provide viable grounds for granting leave to appeal to the Court of Final Appeal.  Firstly, all the matters raised in the notice of motion and written submission relate to the applicant’s individual claim.  No question of great general or public importance has been identified, as required by section 22(1)(b).  Secondly, for the reasons we gave at [13] to [18], the matters advanced by the applicant have no merits.  Specifically, assessment of risks of harm in the light of the country condition is within the remit of the Torture Claims Appeal Board.  As the applicant has not been able to demonstrate that the Board’s assessment is wrong in law, irrational or procedurally unfair, the Court in judicial review proceedings or on appeal has no proper basis to overturn the Board’s finding that the applicant’s ex-husband has ceased to have an adverse interest in her, and that any risk of harm would be lowered or negated by the availability of state protection and internal relocation alternatives.   

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

10.  As the statutory requirements for giving leave to appeal are not met, we dismiss the notice of motion.