FADYA KHOLYQUMINA RIZKY v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 34/2019

[2019] HKCA 661

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 34 OF 2019

(ON APPEAL FROM HCAL NO 708 OF 2018)

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J U D G M E N T

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

1.  By a judgment dated 7 May 2019 ([2019] HKCA 500), the Court of Appeal (Poon JA and Lisa Wong J) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) dated 9 January 2019 refusing to grant leave to her to apply for judicial review.  By a notice of motion dated 15 May 2019, the applicant now seeks leave to appeal to the Court of Final Appeal.

2.  In the notice of motion, the applicant set out the following grounds :

“ - Error / Misdirection in law : failing to take into account the considerations of psychological strain and threats to me, resulting from repeated threats to me in person and / or beating or threats to members of my family;

- Procedural impropriety : failure to consider the concept of extended state acquiescence as expounded by Lam J (as he then was) in TK vs Jenkins; and

   - Irrationality : failure to give reasons for assessment of lack of BOR 3 risk and / or insufficient basis to support conclusion of lack of BOR 3 risk.”

3.  In compliance with the direction given by Master Au-Yeung on 16 May 2019, the applicant lodged her written submissions on 29 May 2019.  In her written submissions, the applicant repeated most of her arguments as set out in the written submissions of her appeal against the Judge’s decision which was canvassed and rejected at [12] and [13] of our judgment.  

4.  We have duly considered the applicant’s notice of motion and her written submissions.  Pursuant to paragraph 3 of Practice Direction 2.1, this application is processed on papers without any oral hearing.

5.  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.  For the reasons that we gave in our judgment, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s order.  None of the matters mentioned by the applicant in the notice of motion or in her written submissions could give rise to any question of great general or public importance such that it ought to be submitted to the Court of Final Appeal for decision.  Nor do we see any basis to grant leave under the “otherwise” limb.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) are not met.

6.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss her notice of motion.