RE DONTOGAN LOIDA TERCERO

CACV 143/2022

[2022] HKCA 1371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 143 OF 2022

(ON AN APPEAL FROM HCAL NO. 347 OF 2019)

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J U D G M E N T

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

1.  On 20 July 2022, this court handed down a judgment ([2022] HKCA 1039) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 7 April 2022 refusing her application for leave to apply for judicial review.

2.  On 1 August 2022, the applicant filed a Notice of Motion to apply for leave to appeal this court’s judgment to the Court of Final Appeal. She has also put in a written submission to support the application.

3.  Having considered the Notice of Motion and the 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 the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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.

6.  The applicant stated the following in the Notice of Motion:

(1)  This Court had not considered that the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) did not give her proper opportunity to establish her claim and her fear that she could not return to her country since her enemies still pose risks to her life. Though the Court did not find merits in her claim, her fear is real and genuine.

(2)  There has been a failure to consider the facts, country of origin condition and material, her fear of her enemies, and the fact that her life will be at risk upon refoulement under the BOR 3 risk ground. 

7.  In her written submission, the applicant argued that:

(1)  Thee Director and the Board failed to take into account and/or give proper weight to relevant considerations rendering their decisions illegal in that:

(a)  The Board did not follow the high standard of fairness. It assessed her claim simply and considered her risk to be low, but she has a right to live without fear under Article 2 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

(b)  Her claim is based on a true story of her life. Maybe her claim relates to private and personal dispute, but her life remains at risk in her home country.

(2)  While the Court considers there are no merits in her case, her claim is not just a private or personal matter.  The decision makers did not have proper regard to her fear.

(3)  The Court did not focus on her fear and the danger to her life when deciding that the Board’s decision was fair and up to standard.

8.  What was stated by the applicant in the Notice of Motion and written submission relate solely to the circumstances and facts of her claim.  No question of great general and public importance has been identified, as required by section 22(1)(b) of the Ordinance, had been identified.  Further, for the reasons we gave in [11] to [15] of our judgment, the matters put forward by the applicant in this application are unarguable.  We also do not see any basis for the “or otherwise” limb under section 22(1)(b). 

9.  As the statutory requirements for giving leave to appeal are not met, the Notice of Motion is dismissed.