RE TORDILLOS ELLA CASUMPANG

CACV 227/2020

[2021] HKCA 240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 227 OF 2020

(ON APPEAL FROM HCAL 1859/2018)

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J U D G M E N T

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Hon P Ng J (giving the Judgment of the Court):

1.  On 23 December 2020, this court (Barma JA, P Ng and S T Poon JJ) handed down a judgment dismissing the applicant’s appeal against the Order of Deputy High Court Judge K.W. Lung (“the judge”) on 18 June 2020 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) dismissing her appeal against the decision of the Director of Immigration in rejecting her non‑refoulement claim.

2.  The facts and issues in the appeal, as well as this 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 Notice of Motion dated 30 December 2020, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“I would like to infomr (sic) 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 (sic) life occur different situation then what is mentioned in COL Information. The Officer and cours (sic) prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

4.  The applicant lodged a written submission in support of her leave application on 11 January 2021.  In the written submission, the applicant submitted that:

(1)  The ‘decision-maker’ failed to meet the high standard of fairness in determining a torture claim.  The applicant cited ST v Betty Kwan & Anor [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 without explaining the relevance of these cases to her application.

(2)  The ‘Adjudicator’ failed to properly assess her credibility.

(3)  The Board’s decision was Wednesbury unreasonable.

5.  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 paper.  This is our determination of the application on paper only without an oral hearing.

6.  The matters stated by the applicant do not constitute grounds for 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.  

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

8.  In any event, as we have held in [14] – [16] of our judgment, it is not the role of the Court of Appeal to re-examine the decision of the Board as if it were a fresh application for judicial review. Further, the applicant is required but fails to identify any error on the part of the judge.  Since the appeal was in effect an invitation to us to review the Board’s decision afresh and since the applicant has failed to identify any error on the part of the judge, we are of the view that the matters raised in the applicant’s Notice of Motion and written submission are not reasonably arguable before the Court of Final Appeal. 

9.  For these reasons, the Notice of Motion dated 30 December 2020 is hereby dismissed.