RE SRI HASTUTIK

CACV 467/2020

[2021] HKCA 582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 467 OF 2020

(ON APPEAL FROM HCAL NO 897 of 2018)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  On 12 March 2021, this Court (Chu JA and ST Poon J) handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 7 September 2020 which refused to give her leave to apply for judicial review.  

2.  On 17 March 2021, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  She has also put in a written submission to support her application.

3.  Having considered the applicant’s notice of motion and written submission, 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 documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

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.

6.  The notice of motion set out five grounds for the application as follows:

(1)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration in refusing the application for judicial review.

(2)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director whereby the Director was required to give reasons to justify the decision.  

(3)  The decision maker only relied on country of origin information (“COI”) and facts about the applicant that favour the rejection of her claim.

(4)  Actual life and situation were different from what was stated in the COI.  The officer and the courts chose to ignore the overwhelming evidence of violence towards minorities.

(5)  The Judge did not apply the law properly. 

7.  The written submission repeated the five grounds of appeal.  It also cited Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and submitted that high standards of fairness are required.  It also referred to authorities on the Wednesbury unreasonableness principle and contended that the Board acted in a procedurally unfair manner. 

8.  We are of the view that what was put forward in the notice of motion and the written submission do not provide viable grounds for granting leave to appeal to the Court of Final Appeal.  Importantly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b). 

9.  Further, none of the grounds of appeal had been argued before the Judge or in the appeal.  It is not open to the applicant to introduce new grounds at the stage of applying for leave to appeal to the Court of Final Appeal.  In any event, they are general assertions with no particulars.  Likewise, the written submission had not shown how the legal propositions cited are relevant to the applicant’s case.  There were also no particulars given for the assertion that the Board had acted unfairly procedurally.  

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

11.  As the statutory requirements for giving leave to appeal are not met, we dismiss the notice of motion.