RE SUSANA

CACV 31/2020

[2020] HKCA 813

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 31 OF 2020

(ON APPEAL FROM HCAL NO. 2640 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 14 August 2020, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Lung given on 7 January 2020 refusing her leave to apply for judicial review.

2.  On 2 September 2020, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal. The applicant has also put in a letter dated 14 September 2020 in response to the Registrar of Civil Appeals’ direction to lodge written submission in support of the application.

3.  Having considered the applicant’s notice of motion and letter, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the materials before us.

4.  The facts of this case have been set out in our judgment.  We will not repeat them.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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.

6.  The notice of motion contained the following grounds of appeal:

(1)  The applicant still has problem in her country.  If she returns, her life will become dangerous.  The applicant was tortured by her ex-husband and had been hospitalised.  The loan shark is also looking for the applicant and will harm her.

(2)  The applicant never has a proper opportunity to explain her problem, and an oral hearing regarding her supporting documents, including hospital discharge certificate.

(3)  The applicant asks for a solution to save her life from her enemies.  She hopes to live peacefully without problems.

7.  In her letter, the applicant reiterated that she could not return to her country at this moment as her life would be in danger due to the threats from her ex-husband and his family.  She stated that her ex-husband had once tried to kill her, and had tortured her many time before.  In support of her case, the applicant attached a document to her letter which was in the Indonesian language.  We had through the Court Language Section obtained an English translation prepared by an Indonesian translator. The document is a doctor certificate dated 16 August 2002 certifying that the applicant was examined on the same day and found to have bruises on her lower back and no treatment is needed.  

8.  The grounds given in the notice of motion do not constitute viable grounds for granting leave to appeal to the Court of Final Appeal. 

9.  Importantly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b).  Further, all these grounds do not address this Court’s reasons for dismissing the appeal given in [12] to [14] of our judgment.  It is also incorrect to say that the applicant has not been afforded a proper opportunity to explain her case.  She was legally represented in the interview with the Department of Immigration.  The Board as well as Deputy High Court Judge Lung had conducted oral hearings to hear her appeal and application.  Her appeal to this Court was listed for an oral hearing, which was, however, vacated due to her failure to comply with the Court’s order to lodge written submission.

10.  Regarding the assertion of danger and threat to her safety if refouled, for the reasons we give in [12] and [13] of our judgment, this does not afford a basis for granting leave to appeal to the Court of Final Appeal.  As for the doctor certificate, it is unclear whether this was provided to the Director or to the Board.  If it was not previously provided to the Director or the Board, as pointed out in [14] of our judgment, if the applicant wishes to rely on it, she can submit it to the Director of Immigration and seek a re-consideration of her claim.

11.  For the above reasons, the applicant’s intended appeal to the Court of Final Appeal is unarguable.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).  Accordingly, we dismiss the notice of motion.