RE PUNO MARIEROL MONTASES

CACV 344/2018

[2019] HKCA 130

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 344 OF 2018

(ON APPEAL FROM HCAL NO. 716 of 2017)

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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 13 December 2018, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 24 July 2018 refusing her leave to apply for judicial review.

2.  By a Notice of Motion dated 28 December 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.  The applicant also lodged a written submission on 11 January 2019.

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 her notice of motion.

4.  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.

5.  The Notice of Motion stated that: (1) The decision maker just relied on country of origin information (“COI”) and previous facts which favoured the rejection of the applicant’s claim. Actual situation was different to that mentioned in the COI; (2) Officer and courts ignored the overwhelming evidence of the violence on minorities; and (3) The decision betrayed a biased and formulaic approach that did not fairly assess the danger of the applicant’s life and was calculated to reject the claim.

6.  In the written submission, the applicant gave an account of personal background and the factual basis of her claim.  She reiterated that her life was in danger and asked the Court to allow her and her partner and their son to remain in Hong Kong.

7.  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.

8.  Firstly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b).  The Notice of Motion and written submission relate only to the circumstances of the applicant’s case.  Secondly, in her appeal to this Court, the applicant did not advance any grounds of appeal against the Judge’s rejection of her complaint about the Board’s approach to COI[2].  It is not the practice of this Court to grant leave to appeal on new points not canvassed in the appeal before it[3]. Similarly, the ground about violence committed to minorities is a new ground that was not argued before the Judge or in the appeal to this court.  It also bears no relevance to the applicant’s case.  Thirdly, for the reasons given in [12] and [13] in our judgment, the argument about the risk of harm faced by the applicant if refouled is unarguable. 

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

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