RE MIHINDUKULASURIYA IRENE FERNANDO

CACV416/2020

[2021] HKCA 1373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 416 OF 2020

(ON APPEAL FROM HCAL 619/2018)

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J U D G M E N T

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

1.  On 15 March 2021, this court (Barma JA and ST Poon J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 12 August 2020 refusing to grant extension of time for his application for leave for judicial review and dismissing the application for leave to apply for judicial review. The applicant had sought to review the decisions of the Torture Claims Appeal Board (“the Board”) and the Director of Immigration rejecting her non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the 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 a Notice of Motion filed on 26 March 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“I would like to inform to the Court of Final Appeal. There is some error in my case. I am totally disagree with the decision of authorities and court because there were totally rely on news and post on web which is not real matter in actual. Because its towards to my life in my home land in Sri Lanka. I do not want go back to my country Sri Lanka because my life is danger in my home land.”

4.  The applicant lodged a written submission in support of the application on 9 April 2021.  In the written submission, the applicant submitted that:

(1)  the Director and the Board did not determine her case fairly;

(2)  there was real procedural unfairness in her case.  There was a public policy of trying to dispose of claim as quickly as possible;

(3)  the applicant was not given assistance to understand her case;

(4)  when the Director made the decision on BOR2 risk, the Director failed to ensure that she was aware of her rights and definition of BOR2 risk;

(5)  there was a lack of legal and language assistance, which mean that she had no understanding of the process or the reason for rejecting her claim.

(6)  the Board’s Decision had not been read to her via an interpreter;

(7)  the court and the authorities failed to meet the requisite standard for a non-refoulement claimant; and

(8)  all the acts of the authorities had been highly discriminatory and unfair to her.

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 the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

6.  The matters stated by the applicant do not constitute grounds for granting 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.  The grounds advanced in the application for leave to appeal to the Court of Final Appeal and the supporting affirmation were never advanced before this court. Before us, the applicant’s Notice of Appeal merely asserted that she would be in danger if refouled.  No written submissions were lodged.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]

8.  Thus, none of the grounds advanced by the applicant is reasonably arguable before the Court of Final Appeal.

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

10.  For these reasons, the Notice of Motion dated 26 March 2021 is dismissed.