MAYO CECILIA PINTO v. TORTURE CLAIMS APPEAL BOARD

CACV 412/2022

[2023] HKCA 186

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 412 OF 2022

(ON APPEAL FROM HCAL NO 600 OF 2022)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  On 19 October 2022, the Applicant filed a notice of appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 7 October 2022 (“the Order”) refusing to grant the Applicant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 8 January 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 21 June 2018 rejecting her non-refoulement claim.

2.  The facts of the Applicant’s case, as well as the Judge’s reasons for refusing to grant leave to apply for judicial review, are set out in the CALL-1 Form ([2022] HKCFI 3070), and will not be repeated here.

3.  The only ground of appeal raised in the Notice of Appeal is that -

“… the gravity of my circumstances have [not] been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.”

4.  The Applicant’s appeal was originally fixed to be heard on 6 February 2023. Pursuant to the directions of the Registrar of Civil Appeals made on 14 December 2022, the Applicant should lodge her written submissions in support of the appeal not less than 28 days before the hearing of the appeal. She failed to do so. The Registrar further directed that in the event the Applicant failed to lodge her written submissions, she would be deemed to have waived her right to have an oral hearing of the appeal, and elected to have her appeal disposed of on paper.

5.  On 3 February 2023, the Applicant wrote to the court seeking leave to withdraw (inter alia) her appeal, indicating that she was expecting to leave Hong Kong soon.

6.  The practice of this court is to consider and if appropriate dismiss an appeal in such circumstances instead of merely granting leave to withdraw.

7.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

8.  The Applicant has not identified any alleged error in the Judge’s decision, or raised any viable ground of appeal against the Order.

9.  Accordingly, the Applicant’s Notice of Appeal filed on 19 October 2022 is dismissed.