RE GOMEZ MENDOZA YESICA

CAMP 184/2023, [2024] HKCA 1093

On intended appeal from [2022] HKCFI 546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 184 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 2190 of 2018)

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J U D G M E N T

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Hon Chu VP giving the Judgment of the Court:

1.  On 22 October 2024, this Court handed down our judgment ([2024] HKCA 936)  refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge K W Lung given on 23 February 2022 which refused to give her leave to apply for judicial review.

2.  On 1 November 2024, 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 the 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 has 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 stated the Torture Claims Appeal Board (“the Board”)  and the Director of Immigration (“the Director”)  did not properly consider the facts, the applicant’s fear for her life and why she could not return to her country; and the applicant has married a local man and has a son who was born in in Hong Kong.  

7.  In her written submission, the applicant made the following additional points:

(1)  The Board considered the risk of harm was too low.  The fact is she still faces danger in her country, her fear continues and she is seeking protection.   

(2)  The Director and the Board failed to consider and/or give proper weight to relevant considerations and materials, namely (a)  they did not follow the high standard of fairness and failed to enquire into her fear and the continuing threat from her enemies, and the country of origin information showed that the authority could not or had no intention to protect her; (b)  her claim was based on a true story of her life, and maybe the risk arose from private or personal dispute but it is too risky for her to return to her country.

(3)  The decision makers did not properly consider her fear.  The Court also did not focus on her fear and just confirm the decisions of the Director and the Board.  The Court should consider her fear, it is out of fear that she seeks protection in Hong Kong, and it would be hard for her as an ordinary woman to survive in her country.

8.  The matters set out in the notice of motion and written submission do not afford any basis for granting leave to appeal.   Importantly, they all concern the applicant’s claim and personal circumstances, and do not show that the intended appeal involves any question of great general or public importance.  Further, for the reasons that we have given in [15] of our judgment, the matters raised are unarguable.   

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

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