RE SUNAR MINA

CACV 534/2018

[2019] HKCA 731

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 534 OF 2018

(ON APPEAL FROM HCAL NO 1073 OF 2017)

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J U D G M E N T

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Hon Mimmie Chan J (giving the judgment of the court):

1.  By judgment dated 15 March 2019 ([2019] HKCA 317), this Court dismissed the Applicant’s appeal against the refusal of leave to apply for judicial review.  The intended judicial review was against the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) rejecting the Applicant’s non-refoulement protection claim.

2.  The Applicant filed a Notice of Motion on 15 April 2019 for leave to appeal to the Court of Final Appeal.  By an unless order made by the Registrar of Civil Appeals on 30 April 2019, the Applicant was to lodge her written submissions by20 May 2019, but she failed to do so.  Therefore, she has been debarred from lodging any written submissions, and is treated as relying only on the representations made in the Notice of Motion and the supporting affirmations in her application for leave to appeal to the Court of Final Appeal.

3.  The following grounds of appeal are stated in the Applicant’s affirmation:

(1)   The judges were wrong in law in holding that there was no state acquiescence or involvement; and

(2)   The judges failed to find out the clear details of the current situation of Nepal.

4.  In her Notice of Motion, the Applicant stated that:

(1)   it is not true that there is no substance in the grounds of the application;

(2)   she did not make a complaint about the poor performance of the duty lawyer due to the fear that she will be picked out for misappropriating by the adjudicator;

(3)   the Applicant did not have enough time to address the bundle.

5.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 30 April 2019 that the Notice of Motion shall be determined on paper only without an oral hearing. This application is determined on paper accordingly.

6.  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 at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

7.  This Court explained clearly at paragraphs 18 to 21 of the judgment why we were not satisfied that the Applicant had any reasonable argument in her intended appeal.  There is no reasonably arguable basis in the grounds set out in the supporting affirmation to challenge the findings of the Court.

8.  The second and third grounds stated in the Notice of Motion were not raised in her application for leave to apply for judicial review or her appeal to the Court against the judge’s decision.  There is no good reason why she should be allowed to rely on any of those new arguments at this stage.  In any event, the new arguments are plainly not reasonably arguable before the Court of Final Appeal. 

9.  The Applicant has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

10.  Therefore, the application for leave to appeal to the Court of Final Appeal is dismissed.