RE ANDRI SUHERLINA

CACV 193/2019

[2019] HKCA 1126

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 193 OF 2019

(ON APPEAL FROM HCAL NO. 348 of 2018)

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JUDGMENT

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

1.  On 30 August 2019, this Court (Cheung and Chu JJA) handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 12 April 2019 refusing her leave to apply for judicial review.

2.  On 11 September 2019, the applicant filed a Notice of Motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant has also lodged a written submission to support her application.

3.  Having considered the applicant’s notice of motion and 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 her notice of motion and written submission.

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.  The Notice of Motion stated that: (i) there is some error in the decision; (ii) the decision maker relied on country of origin information (“COI”) and facts that favoured the rejection of her claim when the real situation was different; (iii) the officers and the court ignored the overwhelming evidence of violence towards minorities; and (iv) the decision betrayed a biased and formulaic approach that did not fairly assess the danger to the applicant’s life and was clearly not reasonable.  

6.  The written submission gave an account of the applicant’s case, and requested that the applicant be allowed to stay in Hong Kong as her life would be in danger if she were to return to Indonesia.

7.  The matters stated in the Notice of Motion and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.

8.  Firstly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b).  What is stated in the Notice of Motion and written submission relates only to the circumstances of the applicant’s case.  Secondly, the complaint about COI and violence against minorities are new points not argued before the Judge or in the appeal before this Court.  It is not open to the applicant to raise them at this late stage.  Thirdly, as pointed out in our judgment at [12], assessment of the merit of the applicant’s claim is for the Director and the Board, who are the primary decision makers.  The points made in the written submission cannot advance the applicant’s case on appeal.    

9.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.  For the above reasons, the statutory requirements for giving leave to appeal is not met.  Accordingly, we dismiss the Notice of Motion.