RE MALUGU JOHANI EMMANUEL

CACV 614/2020

[2021] HKCA 1064

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 614 OF 2020

(ON APPEAL FROM HCAL 2911/2018)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  On 2 July 2021, the Applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal (“CFA”)  against this Court’s judgment of 25 June 2021. In that judgment we dismissed the Applicant’s appeal against the decision of Deputy High Court Judge P Li on 10 November 2020 refusing leave to apply for judicial review.

2.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the CFA at the discretion of this Court or the CFA 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 CFA for decision.

3.  In the Notice of Motion for leave to appeal to the CFA, apart from stating her disappointment with our decision and alleging that we did not “verify all the matters”, she raised the following grounds in support:

“The learned judges may not analyzed the applicant’s claim properly in his home country. The learned Judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director of Immigration whereby the Director of Immigration and the Adjudicator of the Torture Claims Appeal Board were required to give reasons justifying the decision.” [sic]

She also alleged that we only reviewed the matter lightly and did not bear in mind that life and limb are in jeopardy.

4.  The Applicant lodged her written submissions in support on 14 July 2021.  In those submissions she reiterated the above grounds and argued for the first time that she was not given a sufficient chance to arrange relevant evidence for her non-refoulement claim and appeal, and that the decisions rejecting her claim were irrational. 

5.  There is no merit in this belated and vague contention. As mentioned at [8] and [10] to [12] of our judgment of 25 June 2021, she did not advance any grounds for seeking judicial review in her Form 86 and in the appeal she only put forward some general assertions and did not comply with the direction to lodge written submissions. She offered no explanation for her defaults. Before the Director and the Board, her claims were processed by reference to materials prepared with the assistance of a firm of solicitors, Eric Yu & Co.

6.  This Court considered her appeal based on the grounds she advanced in the appeal. Likewise, the judge in the Court of First Instance considered her application for judicial review based on the materials she provided, including the grounds she advanced in the Form 86.

7.  This Court had said repeatedly that application for leave to appeal to the Court of Final Appeal is not a platform for a litigant to conduct the application as if it is a fresh application for judicial review, raising new grounds for the first time.

8.  The allegation that the Board did not give reasons for its decision is patently untrue.

9.  The Applicant’s grounds and submissions fail to engage with the reasons given in our judgment of 25 June 2021 for dismissing her appeal. Nor do they raise any discernible or arguable ground for disturbing this Court’s judgment or the judgment of the court below.

10.  In the circumstances, we do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

11.  For these reasons, we refuse to grant leave to appeal to the CFA, and dismiss the Applicant’s Notice of Motion accordingly.