RE YUYUN

CAMP 185/2022

[2022] HKCA 1448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 185 OF 2022

(ON AN APPEAL FROM HCAL NO. 812 OF 2020)

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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 3 August 2022, this court handed down a judgment ([2022] HKCA 1136) dismissing the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 22 September 2020 striking out her application for leave to apply for judicial review.

2.  On 18 August 2022, the applicant filed a Notice of Motion to apply for leave to appeal this court’s judgment to the Court of Final Appeal.  She has also put in a written submission to support the application.

3.  Having considered the Notice of Motion and the 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.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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 states that: (1) this Court was wrong as matter of law in not applying the principle of procedural fairness when the Director of Immigration (“the Director”) was required to give reasons for his decision: (2) this Court was wrong as a matter of law in not applying the principle of irrationality to the decision of the Director; (3) there are some errors of law in the decision as the decision maker relied on country of origin information (“COI”) and facts that favour the rejection of the applicant’s claim; (4) actual life situation is different from what was stated in the COI. The Court and the decision makers ignored overwhelming evidence of violence committed towards the minorities, searching for unrealistic silver lining; (5) the judge did not apply the law properly and there was procedural unfairness; and (6) the applicant’s life is in danger. She would be killed or harmed if she were to return her country.  

7.  The written submission began with a section on the background of the applicant.  It claimed that the applicant was born and raised in Thailand, and that neither she or her family had been “accused, charged, interrogated, arrested, detained or imprisoned in Bangladesh”.  These assertions do not match the background of the applicant as stated in the decisions of the Director and the Torture Claims Appeal Board (see [5] of our judgment).  They are clearly wrong and we reject them.  

8.  The rest of the written submission quoted extensively from provisions in the ICCPR, the Convention Against Torture, the Hong Kong Bill of Rights Ordinance, Cap. 383 and the Basic Law, as well as cases on the high standard of fairness and Wednesbury unreasonableness.  It submitted that the decision had the effect of finally disposing of the applicant’s claim, rendering her liable to be removed from Hong Kong; hence high standards of fairness were engaged and minimal standard of procedural fairness applied to the decision making process.  The submission further said that the case involves question of great general and public importance, the legal issues raised are complex and have not been adjudicated upon by any court.  There is however no indication of what these question and issues are.

9.  Despite the assertion in the written submission, neither the Notice of Motion nor the written submission has identified any question of great general and public importance, as required by section 22(1)(b) of the Ordinance, had been identified.  It has also not been shown how the provisions and legal propositions set out in the written submission relate to the applicant’s case and intended appeal.  We also do not see any basis for the “or otherwise” limb under section 22(1)(b). 

10.  We also do not see any basis for the “or otherwise” limb under section 22(1)(b). 

11.  As the statutory requirements for giving leave to appeal are therefore not met, we dismiss the Notice of Motion.