RE AKTER LIPI

CACV 169/2019

[2019] HKCA 1141

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 169 OF 2019

(ON APPEAL FROM HCAL NO. 425 of 2018)

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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 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 29 March 2019 refusing her leave to apply for judicial review.  

2.  By a notice of motion dated 2 September 2019, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.  The applicant had also lodged a written submission in support of 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.  The background of this case and the applicant’s claim had been set out in our judgment.  We will not repeat them.

5.  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.

6.  The notice of motion stated that there was some error in law in the decision.  It complained that the decision maker only relied on country of origin information and facts that favoured the rejection of her claim, and ignored overwhelming evidence of violence committed on minorities, and that the decision was biased, formulaic and did not properly assess the risks to her life.

7.  The written submission cited ST v Director of Immigration[2] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and submitted that high standards of fairness are required.  It also referred to authorities on the Wednesbury unreasonableness principle and contended that the Board acted in a procedurally unfair manner.  It further referred to section 37ZT and argued that, in cases of late filing of notice of appeal, the Board may only take account of the (a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence; and (b) any other relevant matters of fact within the Board’s knowledge. 

8.  All 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.  Firstly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b).  Secondly, as pointed out in [14] of our Judgment, there is no proper basis to interfere with the Judge’s decision in that the applicant had not identified any error in the Judge’s decision and we also did not discern any error in the Judge’s reasons and decision.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

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