RE KHATUN ROZINA

CACV 76/2019

[2019] HKCA 746

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 76 OF 2019

(ON APPEAL FROM HCAL 832/2018)

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.  Before the court is a notice of motion filed on 27 May 2019 by the abovenamed applicant, applying for leave to appeal to the Court of Final Appeal (“CFA”) against this court’s judgment dated 17 May 2019[1], dismissing the applicant’s appeal from Deputy High Court Judge K W Lung’s decision dated 8 February 2019[2] refusing her leave to apply for judicial review of the decision dated 2 May 2018 by the Torture Claims Appeals Board (“Board”) in respect her non-refoulement claim.

Paper disposal appropriate

2.  Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing. We agree with the Registrar that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.  By virtue of s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA, from any judgment of the CA in any civil cause or matter, whether final or interlocutory, if, in the opinion of the CA or the CFA, as the case may be, 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 CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

4.  First, by the notice of motion, the applicant asserted as follows (sic):

“I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in COL 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 betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

5.  Second, the applicant filed skeleton submission on 10 June 2019, in which she referred to ST v Director of Immigration [2014] 4 HKLRD 277; Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for these well established propositions: that high standards of fairness are required on the part of the decision maker in the determination of a torture claim as life and limb are in jeopardy; that the courts will on judicial review subject the determination of a torture claim to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met; that the torture claimant should be given every reasonable opportunity to establish his claim that he would be in danger of being subjected to torture if deported to his home country; that a decision of an administrative body exercising discretionary decision-making functions can be set aside if it is so unreasonable that no reasonable authority could ever have come to such a decision; and that the more substantial the interference with the human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable.[3]

Discussion

6.  The applicant has not by her notice of motion or skeleton submission raised or identified any particular issue of great, general or public importance that should be submitted for determination by the CFA. 

7.  Nor do we see any basis to grant leave under the “or otherwise” limb. 

8.  In particular, we read the notice of motion to be accusing those involved in the determination of non-refoulement claims (i.e. the Director of Immigration, the Board and the courts) of approaching such claims mechanically with a pre-disposition for dismissal by relying on just generic country of origin information, without regard to the particular facts and evidence of the individual case. The applicant has, however, not advanced any or any proper basis for so suggesting.

9.  As for the skeleton submission, the applicant has not explained how any of the cases and legal principles she cited may be relevant to the question whether her case should be heard by the CFA.

10.  Neither of the statutory criteria under s 22(1)(b) is met.  Accordingly, we dismiss the notice of motion.