RE LOURENCO DA SILVA

CACV 231/2019

[2019] HKCA 1451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 231 OF 2019

(ON APPEAL FROM HCAL NO 569 OF 2018)

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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.  By a judgment dated 5 September 2019 ([2019] HKCA 1007) (“the Judgment”), this Court (Hon Cheung, Chu and Au JJA) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan dated 17 May 2019 refusing his leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 29 December 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 6 December 2016 rejecting the applicant’s non-refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in the Judgment. We will not repeat them here.

3.  By a Notice of Motion dated 20 September 2019, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

4.  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.

5.  In the Notice of Motion, the applicant set out the following grounds:

“Dear Sir/Madam,

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 favor while rejecting my claim. Acual life occur different situation then what is mentioned in COL Information. The Officer and cours 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.” [sic]

6.  On 23 September 2019, Master Au-Yeung directed that, inter alia, the applicant should lodge his written submissions within 14 days after he filed his Notice of Motion, namely, on 4 October 2019 and written submissions lodged in non-compliance would not be considered.

7.  However, the applicant lodged his written submissions late on 16 October 2019.  On 24 October 2019, pursuant to paragraph 3 of Practice Direction 2.1 and in light of the directions of Master Au-Yeung, this court directed that the Notice of Motion shall be dealt with on papers without referring to his written submissions as the applicant failed to explain the non-compliance.

8.  We have duly considered the applicant’s Notice of Motion.  The Notice of Motion contained nothing but allegations towards the decision makers, ie, the Board (after the Director).  As stated in the Judgment paragraphs 13 - 17, the assessment of evidence and the COI materials is within the province of the decision makers’ responsibilities.  It was not for this court to provide a further venue to assess the evidence subject to public law grounds.  As such, there are simply no viable grounds that warrant the grant of leave to appeal the Judgment to the Court of Final Appeal.

9.  In any event, for the reasons that we have given above, we do not see any prospect of success in the applicant’s intended appeal against the Judgment.  Further, none of the questions raised by the applicant in the Notice of Motion involve any question of great general or public importance such that it ought to be submitted to the Court of Final Appeal for decision.  Nor do we see any basis to grant leave on the “otherwise” limb.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance are not met.

10.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion.