RE GOROSPE MARY ANGELINE O

CACV 87/2018

[2018] HKCA 568

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 87 OF 2018

(ON APPEAL FROM HCAL NO. 630 of 2017)

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J U D G M E N T

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

1.  On 28 June 2018, this Court (Chu and Barma JJA) handed down our judgment dismissing the applicant’s appeal against the decision of Campbell-Moffat J (“the Judge”) given on 20 March 2018 refusing her leave to apply for judicial review.  

2.  By a Notice of Motion dated 9 July 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.

3.  In the Notice of Motion, the applicant requested for an oral hearing.  However, as provided in paragraph 3 of Practice Direction 2.1 on Application for Leave to Appeal to the Court of Final Appeal filed in the Court of Appeal in Civil Cases, application for leave to appeal to the Court of Final Appeal shall be dealt with and determined on paper unless the court directs otherwise.  Having considered the Notice of Motion and the applicant’s written submission, we do not see any reason for departing from the usual practice.  We consider that the application can be properly disposed of without an oral hearing, and have proceeded to consider the application on paper.  We now hand down our judgment.

4.  Under section 22(1)(b) of the 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.

5.  In the Notice of Motion, other than stating that there is merit in her complaint of procedural unfairness and she disagreed that her intended judicial review was not reasonably arguable and had no prospect of success, the applicant raised two specific grounds as follows (at paragraphs 2 and 3):

(1)  “The fact that there was not a separate appeal is an indication that my case has been compiled together and be considered in one go, and therefore I respectfully submit that in this regard my BOR 2 should in fact been referred back to the Duty Lawyer Service for the completeness of the case.”

(2)  “I have never suggested that I am entitled to free legal representation at all stages of the proceedings. I am rather focusing merely on the BOR 2 consideration.”

6.  These grounds relate only to the circumstances of the applicant’s case and do not involve any question of great, general or public importance. 

7.  Further, there are no merits in these grounds and also the complaint of procedural unfairness.  As pointed out in paragraph 16 of this Court’s judgment, in June 2017, the applicant was aware the Director was about to consider her claim under BOR 2 risk ground, and she had responded to the Director’s invitation to provide information and representation.  It was open to her to provide all information and representation relevant to the BOR 2 risk assessment.  It was also open to her to seek assistance from the Duty Lawyer Service at that stage. 

8.  Similarly, as noted in paragraph 16 of this Court’s judgment, when the applicant appeared before the Board, she consented to the Board dealing with her claim on all applicable grounds (except the torture ground since the applicant had previously unsuccessfully appealed to the Board against the Director’s rejection of her torture claim).  She had full opportunity to put forward information and representation relevant to a BOR 2 claim, and she in fact provided additional documents and information to the Board.  She could have approached the Duty Lawyer Service to seek assistance in relation to her appeal before the Board.  The Judge had correctly pointed out in paragraph 13 of CALL-1 Form that Duty Lawyer Service will continue to represent applicants in appeals before the Board if they are satisfied there are merits and it is appropriate to do so.  The applicant had also not particularised what was the unfairness complained of; she had not identified what information or representation she would have advanced, but was unable to advance, before the Board to support a BOR 2 claim.

9.  There is also no other reason for submitting the proposed appeal to the Court of Final Appeal for decision. 

10.  For the reasons set out above, the applicant has failed to meet the threshold imposed by section 22(1)(b) to enable her to obtain leave to appeal to the Court of Final Appeal. Accordingly, we dismiss the Notice of Motion.