RE VINTOLA ZOILO ALAIN REY GOCELA

CACV 570/2021

[2022] HKCA 1027

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 570 OF 2021

(ON APPEAL FROM HCAL 2166 OF 2018)

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J U D G M E N T

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Hon Au JA (giving judgment of the Court):

1.  On 18 May 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au JA and Lisa Wong J)  judgment of 13 May 2022 (“the Judgment”)  ([2022] HKCA 634). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung dated 7 December 2021, refusing his application for leave to apply for judicial review ([2021] HKCFI 3608).

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 his Notice of Motion, the applicant stated:

“I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the ovewheming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.” (sic)

5.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 31 May 2022.  In those submissions the applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 for the proposition that high standards of fairness were required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  He also referred to section 37ZT of the Immigration Ordinance, Cap 115, which was about the late filing of notice of appeal to the Board.  It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case.

6.  In our view, the applicant’s intended appeal has no merit at all.  The matters raised in his Notice of Motion and written submissions are general, bare and vague in nature and the applicant failed to show how the cited legal propositions were relevant to his case.  More importantly, his assertions are all directed to the Director and the Board.  Nowhere did he identify how this Court had erred in the Judgment.  As such, nothing set out in the Notice of Motion and his written submissions can be considered as viable grounds of appeal to the Court of Final Appeal.

7.  Further, it is trite that the assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

8.  In any event, the applicant’s contentions are fact-specific and do not relate to any question of great general or public importance.

9.  Accordingly, he has failed 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 filed on 18 May 2022 is dismissed.