RE LAZAGA GINA CARBONELL

CACV 229/2024, [2025] HKCA 113

On Appeal From [2024] HKCA 910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 229 OF 2024

(ON APPEAL FROM HCAL NO 378 OF 2019)

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J U D G M E N T

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

1.  On 9 October 2024, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this court’s judgment of 4 October 2024 (“the Judgment”) ([2024] HKCA 910). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge To (“the Deputy Judge”) dated 28 May 2024, by which the Deputy Judge dismissed her application for leave to apply for judicial review ([2024] HKCFI 1454)(“the Leave Decision”).

2.  The facts and issues in the appeal, as well as this court’s reasons for dismissing it, are set out in the Judgment. We will not repeat them here. After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this court or the Court of Final Appeal 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.

4.  In her Notice of Motion, the applicant stated:

“I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favor while rejecting my claim. Acual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.” (sic)

5.  Pursuant to Practice Direction 2.1, the applicant lodged her written submissions on 22 October 2024. In those submissions, she cited various general propositions and legal authorities on the high standards of fairness as well as section 37ZT of the Immigration Ordinance, Cap 115, which related to the late filing of notice of appeal before the Board. However, the applicant failed to specify how those legal principles are relevant to her case.

6.  In our view, the applicant’s application is plainly devoid of merits. Her assertions are all vague, bare and unsupported by any specific particular or evidence. General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. In any event, as stated at [12] ‑ [13] of the Judgment, it is well-established that the assessment of evidence, Country of Origin Information (“COI”) and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. More importantly, the applicant fails to point out any specific error in the Judgment. Clearly, her assertions do not constitute proper grounds of appeal.

7.  Further and in any event, even taking her case at its highest, her allegations remain fact-specific and do not relate to any question of great general or public importance.

8.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO. We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

9.  For these reasons, the applicant’s intended appeal has no merit. Accordingly, the Notice of Motion filed on 9 October 2024 is dismissed.