BANGLAYAN BETTY MALECDAN v. TORTURE CLAIMS APPEAL BOARD

CACV 313/2023, [2024] HKCA 306

On Appeal From [2024] HKCA 80

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 313 OF 2023

(ON APPEAL FROM HCAL NO 289 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

1.  This is an application for leave to appeal to the Court of Final Appeal (“CFA”). The applicant is a national of the Philippines whose claim for non-refoulement protection in Hong Kong was rejected by the Director of Immigration and by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”). Her application for leave to apply for judicial review of the Board’s decision was dismissed by the Court of First Instance. Her appeal against that decision was dismissed by this Court in our judgment dated 29 January 2024.

2.  By Notice of Motion filed on 15 February 2024, the applicant seeks leave to appeal against our judgment to the CFA.  In that document the applicant states that the court was incorrect in failing to apply the “principle of procedural unfairness” and “principle of irrationality” to the decision of the Director.  It is said that the decision-maker did not consider all relevant aspects of his case and this constitutes a legal error of general or public importance.  The applicant also says that the decision-maker solely relied on country of origin information and the previous facts and that the real-life situations are different.  She emphasises that her life would be in danger in her country and that there is a substantial risk of her being killed or harmed upon her return.

3.  Despite having acknowledged the directions for written submissions to be lodged with the court by 29 February 2024, the applicant has not to date lodged any submissions for the present application. There is no reason for us to depart from the usual practice of determining an application for leave to appeal on the basis of the available materials without an oral hearing, as set out in paragraph 3 of Practice Direction 2.1.

4.  We take the view that this application ought to be dismissed because the applicant has not shown that the intended appeal raises any question which, by reason of its great general or public importance, or otherwise, ought to be submitted to the CFA for decision (which is the condition for giving leave to appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484), and also because she has failed to show any prospects of success in the intended appeal.

5.  Accordingly, the Notice of Motion is dismissed.