RE SALGADO LEONIDA TAMAYO

CAMP 212/2023, [2024] HKCA 602

On Appeal From [2024] HKCA 272

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 212 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 133 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  On 2 April 2024, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this court’s judgment of 22 March 2024 (“the Judgment”)  ([2024] HKCA 272).  In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 2 August 2022, by which the Judge dismissed her application for leave to apply for judicial review ([2022] HKCFI 2370).

2.  The facts and issues in the appeal, as well as this court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this court or the Court of Final Appeal 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.

4.  In her Notice of Motion, the applicant stated:

“I believes that the Director(s)  of Immigration and the Honourable Justice reached the decision wrongly in assessing my non-refoulement claim. I believes that these decisions were not reasonable and unfair (as required by the Wednesbury test). Indeed the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In Practice, the right to life is mainly protected by the Criminal Law and it must be protected from extra-judicial killings such as I may face if she would be deported to my country. In addition to this I believes that the Justice failed to give me sufficient time and chance to arrange relevant evidence to my non-refoulement claim.” (sic)

5.  Pursuant to Practice Direction 2.1, the applicant lodged her written submissions on 16 April 2024.  In those submissions, she reiterated the factual basis and procedural history of her non-refoulement claim.  She also cited various legal authorities on high standards of fairness and Wednesbury unreasonableness but failed to elaborate on her assertions.

6.  In our view, there is no merit in her application.  The matters raised in her Notice of Motion and written submissions are all general and bare allegations without any specific particulars or explanation.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  She also fails to give any specific particulars as to any errors in the Judgment.  Her allegations do not constitute proper grounds of appeal and are in any event devoid of merit.

7.  Moreover, it is noted that the applicant filed her application for leave to apply for judicial review on 14 January 2019.  After the Leave Decision was handed down on 2 August 2022, she filed her application for extension of time to appeal before the Deputy Judge on 21 December 2022 and her reapplication for extension of time to appeal before this court on 5 June 2023.  Clearly, the applicant had ample time and opportunity to present her case before the Deputy Judge and this court.  Her allegations of these being no proper oppositions given to her to present her case plainly lack basis.

8.  Further and in any event, even taking them at their highest, those allegations remain fact-specific and do not relate to any question of great general or public importance.

9.  Accordingly, the applicant fails to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

10.  For these reasons, the applicant’s intended appeal has no merit.  Accordingly, the Notice of Motion is dismissed.