RE RESTU DWI AMBARWULAN

CACV 280/2018

[2019] HKCA 706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 280 OF 2018

(ON APPEAL FROM HCAL 590/2017)

--------------------------------------

___________________

J U D G M E N T

___________________

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

1.  On 31 October 2018, this court (Yuen and Barma JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 27 June 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal from the decisions of the Director of Immigration rejecting her non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 22 March 2019, for leave to appeal to the Court of Final Appeal.  The Notice of Motion was filed after more than 28 days from our judgment.  The applicant stated in her Notice of Motion that:

“…There is some error in law in my decision. Decision Makers just relied on COI information and my previous facts which are favor on reject my claim.

Actual life occur different situation [the Board] and the court prefers to ignore the overwhelming the honourable judges did not consider my appeal thoroughly”

4.  In her supporting affirmation of the same day, the applicant deposed that “due time I cannot possible to submission this Notice of Motion for I have no knowledge”.  Attached to her affirmation were copies of our judgment and order.

5.  In compliance with the directions of the court, the applicant lodged a written submission in support of her application on 4 April 2019.  In her written submission, the applicant repeated the matters raised in the Notice of Motion.  She also submitted that the court did not address the issues in her skeleton submission dated 11 September 2018 and did not permit her to raise new grounds.  She urged the authorities to not dispose of her claim “as quickly as possible”.  She submitted that the high standard of fairness has not been followed in her case and her claim based on BOR2 risk should be reassessed by the Director.

6.  Having considered the applicant’s Notice of Motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of her Notice of Motion and written submission.

7.  The applicant failed to offer any satisfactory explanation for her delay in filing the Notice of Motion.  The delay was not insignificant.  We would nevertheless go on to consider the merits of her leave application.

8.  The matters stated by the applicant in her Notice of Motion, affirmation and written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484. Nor is any such question apparent to us from the matters she has raised in the documents filed by her.  

9.  We have already dealt with the issue raised in her skeleton submissions dated 11 September 2018 in our judgment.  At [14], we gave reasons for not permitting her to rely on new grounds.  At [15], we dealt with the applicant’s ground of appeal based on COI.  As for the other grounds raised in her Notice of Motion and skeleton submissions dated 4 April 2019, they are vague and lack particulars.  There is nothing to suggest that her claim based on BOR2 risk should be reassessed by the Director.  In our view, these grounds are not reasonably arguable before the Court of Final Appeal.

10.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.  For these reasons, the Notice of Motion dated 22 March 2019 is dismissed.