RE OXINA JOAN PATRICIO

CACV 301/2020

[2021] HKCA 841

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 301 OF 2020

(ON APPEAL FROM HCAL NO 2416 OF 2018)

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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 28 January 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au JA and G Lam J) judgment of 27 January 2021 (“the Judgment”) [2021] HKCA 107.  In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung dated 22 July 2020, refusing her leave to apply for judicial review.

2.  The facts and issues in the appeal, as well as the 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) provides that an appeal shall lie to the Court of Final Appeal (“CFA”) at the discretion of this Court or the CFA 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 CFA for decision.

4.  In her Notice of Motion, the applicant raised the following grounds of appeal:

“Dear Sir Madam, with due respect and humble submissions I beg to you that I couldn’t accept the decision which was made on 17 January 2021 by the Judge, because there are some incorrect informations which are used by the court to make the decision. Decision maker relied just a simple hearsay. The Judge did not verify all the matters which I gave to the court on previous time. This decision made me irrational of my life and disappointed me about my life security. This decision was unfair and reflected my claim. Other grounds are written on the Annex-A.”[sic]

5.  In the 2-page document attached to her Notice of Motion titled “Annex-A”, the applicant further advanced the following grounds: (a) high standard of fairness is required in assessing non-refoulement cases; (b) the decision has the effect of disposing finally the applicant’s claim and is thus significant; (c) the judge erred in law in not applying the principle of irrationality; (d) the judge did not analyse the applicant’s claim properly in her home country; and (e) the judge did not fully consider the applicant’s proofs; and (f) the judge’s refusal against the applicant’s appeal was unreasonable.

6.  In her written submissions of 11 February 2021 filed pursuant to the directions of the Registrar of Civil Appeals, other than the grounds she has already stated in Annex-A, the applicant further complained that the decision makers did not scrutinize her claim properly; the judge failed to apply the principle of procedural unfairness; the adjudicator did not give her sufficient time to arrange for evidence; the Torture Claims Appeal Board relied on unrecognized source of information and she sought this Court’s permission to give her some time to submit new documents.

7.  In our view, the applicant’s application is totally without merits.  The arguments in her Notice of Motion and written submissions effectively repeated those advanced in the appeal but rejected by us in the Judgment: see [11] - [12] and [20] - [22] of the Judgment.  She fails to pinpoint any specific errors in the Judgment. These are therefore not viable grounds.  In this circumstance, we also reject her application to submit new documents as, firstly, she did not disclose what the new documents would be and how they would assist her case and, secondly, given our reasons above, we do not think the alleged new documents would have any impact on our decision and thus the criteria in Ladd v Marshall [1954] 1 WLR 1489 certainly cannot be met.

8.  In the circumstances and in any event, we also do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

9.  For these reasons, we refuse to grant leave to appeal to the CFA, and dismiss the applicant’s Notice of Motion.