RE LAGUISAN CATALINA BUNHIYAN

CACV 341/2020

[2021] HKCA 1059

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 341 OF 2020

(ON APPEAL FROM HCAL NO 438 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 13 May 2021, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 27 July 2020 which refused to give her leave to apply for judicial review.     

2.  On 25 May 2021, 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 her 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 have been set out in our judgment.  We will not repeat them.

5.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, 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 did not set out any ground in support of the application.  It merely stated that the applicant disagreed with the authorities’ decisions and that as her life is still in danger in her home country, she asked to be allowed to stay in Hong Kong.

7.  The written submission set out the background of the applicant’s claim, her appeal to the Board and her application for leave to bring judicial review.  It was followed by criticisms of the Board’s decision which included mis-application and selective use of country of origin information, and failure to adhere to a high standard of fairness and the requirements of procedural fairness.  It also cited the UK Supreme Court decision of Osborn v The Parole Board [2013] UKSC 61 and argued that the case as well as the principle discussed in it, namely, whether procedural fairness requires an oral hearing, had not been cited in the application before the Judge.  It was said that the Judge had failed to make sufficient enquiry before deciding on the applicant’s application.     

8.  For the reasons below, we are of the view that what have been put forward in the notice of motion and the written submission do not provide viable grounds for granting leave to appeal to the Court of Final Appeal:

(1)  The matters raised in the notice of motion and written submission all relate to the applicant’s claim.  No question of great general or public importance has been identified, as required by section 22(1)(b). 

(2)  The arguments now raised in the written submission were not raised in the Form 86 or argued in the appeal to this Court.  It is established law that it is not permissible to raise new arguments or issues at the stage of applying for leave to appeal to the Court of Final Appeal. 

(3)  The case of Osborn v The Parole Board has no relevance.  The applicant’s appeal to the Board was heard at an oral hearing. As to the applicant’s application for leave to apply for judicial review, Order 53 rule 3(3) of the Rules of the High Court, Cap. 4A provides that the Court may determine the application without an oral hearing.  The applicant did not request an oral hearing, and the Judge did not err in dealing with her application on the papers.  As to the appeal to this Court, the applicant had elected for her appeal to be dealt with on the papers.       

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.

[1] [2021] HKCA 667.