RE INDAH DWI WINARSIH

CACV 541/2021

[2023] HKCA 294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 541 OF 2021

(ON APPEAL FROM HCAL NO 513 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  On 7 November 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 20 October 2022 (“the Judgment”)  ([2022] HKCA 1552). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 30 November 2021, by which the Deputy Judge refused her application for leave to apply for judicial review ([2022] HKCFI 3413).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

4.  In the Notice of Motion, she stated:

“1. 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 whereby the director was required to give reasons justifying the decision.

2. The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration refusing my application for Judicial Review.

3. There is some error in law in my decision. The decision maker just relied on COL information any my previous facts, which were favour on rejecting my claim.

4. Actual life occur different situation then mentioned COL information. Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

5. The Judge did not apply the law properly & Procedural unfairness.

6. I further want to explain that my life is in danger in my country. I would be killed or harmed if I return back to my country.” (sic)

5.  Pursuant to Practice Direction 2.1, the applicant lodged her written submissions on 21 November 2022.  In those submissions, she cited various provisions from the International Covenant on Civil and Political Rights, Hong Kong Bill of Rights Ordinance Cap 383, the Basic Law, the United Nations Convention Against Torture.  She further cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 that high standards of fairness were required in the determination of a torture claim.  The applicant further contended that the Board ought to have considered matters such as country conditions of the applicant’s country of origin and that the Board failed to scrutinise the Director’s decision.  She also cited The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243, and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 and contended that the decision maker was under a constitutional duty to act fairly.  It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to her case.  More importantly, none of her submissions identified any error in the Judgment.

6.  In our view, the applicant’s intended appeal has no merit at all.  The assertions raised in her Notice of Motion and written submissions are all bare and vague allegations without specific particulars in support and do not constitute viable grounds of appeal.  Furthermore, none of the arguments raised in her written submissions were argued before the Deputy Judge or before this Court in her earlier appeal.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it; nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal: see Re Orense Marian Masangkay [2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh [2021] HKCA 870 at [7].  In any event, her arguments are all general and bare assertions unsupported by particulars.  She has also failed to show how the legal propositions as stated in her written submissions relate to her case.  More importantly, none of her submissions has identified any error in the Judgment.  As such, they are not viable grounds of appeal.

7.  In any event, the applicant’s contentions are fact-specific and do not relate to any question of great general or public importance.

8.  Accordingly, she has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

9.  For these reasons, the applicant’s intended appeal has no merit and does not meet the requirements of section 22(1)(b)  of the HKCFAO.  Accordingly, the Notice of Motion is dismissed.