RE CAO THI SINH

CACV 287/2020

[2021] HKCA 1051

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 287 OF 2020

(ON APPEAL FROM HCAL NO. 1845 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 22 April 2021 ([2021] HKCA 513), this Court (Yeung VP and Chu JA) dismissed the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 14 July 2020 in HCAL 1845/2018 refusing to grant her leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) given on 3 September 2018 in which the Board confirmed the decision of the Director of Immigration (“the Director”) given on 27 January 2017 rejecting her non-refoulement claim.

2.  By a notice of motion dated 30 April 2021, the applicant now seeks leave to appeal to the Court of Final Appeal on the following grounds:

i.   The Judges were wrong as a matter of law for not having applied the principles of irrationality to the decision made by the Director in refusing her application for leave to apply for judicial review.

ii.  The Judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director.

3.  In compliance with the directions made by the Registrar of Civil Appeals on 3 May 2021, the applicant lodged her written submissions on 11 May 2021.   

4.  In her written submissions, she repeated the background of her case.  She quoted passages from ST v Director of Immigration[1] [2014] 4 HKLRD 277 and emphasized that the decision of the Director is significant as it deals with the substantive right of a claimant not to be subject to torture and his right to non-refoulement protection.  The applicant further contended that “high standards of fairness” applied to the determination of a non-refoulement claim and the Board had acted in a procedurally unfair manner without properly assessing her credibility.  

5.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

6.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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. 

7.  The applicant failed to pinpoint any error or raised any discernible grounds to disturb our judgment.  The matter raised in the notice of motion and the written submissions are vague and general assertions without any support and basis.  None of the matters mentioned therein can be construed as valid ground of appeal to the Court of Final Appeal.

8.  For the reasons that we gave in the Judgment, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and her written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

9.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss her notice of motion.

[1] The correct citation should be ST v Betty Kwan.