RE CLAVERO JOY CABALLERO

CAMP 235/2019

[2020] HKCA 858

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 235 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 197 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 18 June 2020 ([2020] HKCA 467), this Court (Yeung VP and Chu JA) dismissed the applicant’s application for an extension of time to appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 4 April 2019 in HCAL 197/2018 refusing her application for leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board (“Board”) given on 25 April 2017 dismissing her petition/appeal from the decisions of the Director of Immigration (“Director”) given on 7 April 2016 and 12 January 2017 rejecting her non-refoulement claim.

2.  By a notice of motion dated 22 June 2020, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

“- The claims that the Judgment has made stated is no substance in the grounds of the application is not true.

- On the strength of the grounds not made complain about the poor performance of his duty lawyer is due to fearing he will be picked out for misappropriating by the adjudicator.

- The applicant gently did not have enough time to address the bundle.

- Rest of the grounds I will submit as soon as possible.” 

3.  Pursuant to the directions made by the Registrar of Civil Appeals on 23 June and 29 July 2020, the applicant should lodge with the court her written submissions in support of the notice of motion on or before 14 August 2020.  The applicant failed to do so.

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

5.  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.

6.  Regarding the applicant’s complaint that it was wrong for this Court to conclude that her grounds were of no substance, as set out at [11] of our judgment, the Judge found that the applicant had repeated her application for leave for judicial review without any justification and it was an abuse of court process.  In her grounds of appeal presented before this Court, she failed to engage with the reason given by the Judge in rejected her application and we found her grounds irrelevant and unarguable.  As regards the remaining grounds, the applicant did not raise them in the proceedings below and they would not generally be entertained in a leave to appeal application: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12].  In our judgment, none of the grounds set out in the notice of motion can be construed as valid ground of appeal to the Court of Final Appeal.

7.  For the reasons that we gave in our judgment of 18 June 2020, 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 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.

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