RE GARILLO RICHARD ORTAL

CAMP 191/2019

[2020] HKCA 347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 191 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 589 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 15 January 2020, this Court (Chu and Barma JJA) handed down our judgment[1] refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Josiah Lam given on 30 April 2019 refusing him leave to apply for judicial review.    

2.  On 16 January 2020, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant also put in a written submission to support his 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 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.  Under section 22(1)(b) of the 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 the court had unfairly dismissed the applicant’s appeal, and that the applicant, as a foreigner, had problems understanding the system and needed to find someone to explain it to him and help him.    

7.  The written submission repeated the three arguments raised by the applicant in support of his application for leave to appeal out of time (see [15] of our judgment).  They are: (i) it was a fact that he did not know the procedure and mechanism to make a non-refoulement claim; (ii) it was unsafe for the applicant to return to the Philippines because, as the human rights reports show, the country is fraught with many problems, including unlawful and extrajudicial killings; and (iii) the court in a judicial review should evaluate the actions of the government departments and the insensitivity to the situation in the applicant’s home country is an error of judgment that should be reviewed.     

8.  We are of the view that the points and arguments advanced in the notice of motion and written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  They relate only to the circumstances of the applicant, and do not involve any question of great general or public importance, as required by section 22(1)(b).  Further, for the reasons set out in [17] of our judgment, the arguments put forward by the applicant are unarguable.  

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

10.  As the statutory requirements for giving leave to appeal are not met, we dismiss the Notice of Motion.