RE ORENSE MARIAN MASANGKAY

CACV 300/2020

[2022] HKCA 33

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 300 OF 2020

(ON APPEAL FROM HCAL 1814/2018)

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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 13 July 2021, this court (Yeung VP and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the judge”) on 10 July 2020 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal from the decision of 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 July 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 Court of Final Appeal. There is some error in law in my decision maker just relied on COI information and my previous facts which were favor on reject my claim. I am strongly disagree with the decision of authorities. Actual life occur different situation then mentioned in COI information. Officer and court prefers to ignore the overwhelming of the evidence of the violence towards a bias and formula approach unlikely fairly access the danger of my life and clearly calculate to reject my claim”

4.  The applicant lodged a written submission in support of the application on 9 August 2021.  In the written submission, the applicant identified a number of errors allegedly committed by the Board and the Director.  The applicant also complained that she had not been fully informed of her rights or had an opportunity to be heard with assistance provided 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 applicant complained that she had not been fully informed of her rights.  She also complained that the court took a biased view against her.  Both of these grounds had never been raised before us and 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.  Neither the Notice of Motion nor the written submissions identify any supposed error in our judgment and they raise no ground that 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 July 2021 is dismissed.