RE BALLESTEROS SHIRLEY MAGLALANG

CACV 125/2023, [2023] HKCA 939

ON APPEAL FROM [2023] HKCA 799

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 125 OF 2023

(ON APPEAL FROM HCAL 1194 OF 2019)

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JUDGMENT

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Hon Lisa Wong J (giving the judgment of the court):

Application

1.  Before the court is a notice of motion filed on 7 July 2023 for leave to appeal to the Court of Final Appeal (“CFA”) against the judgment dated 5 July 2023[1] of this court (Kwan VP and Lisa Wong J) (“Judgment”).  By the Judgment, this court dismissed the applicant’s appeal from a decision dated 20 April 2023[2](“Judge’s Decision”) of Deputy High Court Judge Bruno Chan (“Judge”), refusing her leave to apply for judicial review of the decisions dated 24 February 2017 and 18 April 2019 (“Board’s Decisions”) of the Torture Claims Appeal Board (“Board”) concerning her non-refoulement claim (“Claim”).

Paper disposal appropriate

2.  Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper on the basis of the written materials filed with the court without an oral hearing.  We agree that paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.  Under s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA from any civil judgment of the CA 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.

Applicant’s contentions in support of leave to appeal to CFA

4.  In seeking leave to appeal to the CFA, the applicant first stated, without any particulars, in the notice of motion that she disagreed with the Judgment and wanted to appeal.

5.  Second, on 21 July 2023, the applicant lodged written submission, by which she repeated in gist the facts in support of the alleged fear of harm underlying the Claim and complained that the officer assigned by the Director of Immigration to handle the Claim disbelieved her despite the (unspecified) supporting documents that she had submitted and that the Board had made many (unidentified) errors, and criticised the Judge for failing to hold an oral hearing, consider her arguments and find (unparticularised) errors in the Board’s Decisions which she could identify.

Discussion and disposition

6.  We have given detailed reasons for dismissing the applicant’s appeal against the refusal of leave for judicial review of the Board’s Decisions.  See [18]-[23] of the Judgment.  The applicant has made no attempt to engage our reasons.

7.  In particular, we refer to [12] and [15] of the Judgment.  To sum up, the applicant did not in her Form 86 dated 6 May 2019 or supporting affirmation of the same date raise any proposed ground for judicial review of the Board’s Decisions (for which leave was sought out of time).  Nor did she state in the notice of appeal dated 27 April 2023 any ground of appeal against the Judge’s Decision.  In this connection, the Judge dealt with the application for leave for judicial review on paper simply because the applicant had not asked for an oral hearing.

8.  The applicant has plainly not identified any specific error in the Judgment that raises any, or any arguable, issue for determination by the CFA, whether of great, general or public importance or otherwise.

9.  Nor do we see any scope to grant leave under the “or otherwise” limb.

10.  As neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met, we dismiss the notice of motion.

[1] [2023] HKCA 799.

[2] [2023] HKCFI 1015.