Re Musafaqoh

CACV 335/2018

[2019] HKCA 654

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 335 OF 2018

(ON APPEAL FROM HCAL 126/2018)

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Before: Hon Yeung Acting CJHC, Barma and McWalters JJA in Court

Date of Judgment: 14 June 2019

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J U D G M E N T

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

1.On 20 December 2018, this court (Yeung Acting CJHC, Barma and McWalters JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the judge”) on 16 July 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal from the decision of the Director of Immigration. The Director rejected her application to re-open her case after she had failed to complete the non-refoulement claim form (NCF) within the time limit.

2.The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.The applicant subsequently applied, by a Notice of Motion dated 31 December 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“The claims that the judgment has made stated is no substance in the grounds of the application is not true.

On the strength of the grounds not made a complain about the poor performance of his duty lawyer is due of fearing he will be picked out for misappropriating by the adjudication.

The applicant gently did not have enough time to address the bundle.  Rest of the grounds I will submit as soon as possible.”

4.In the affirmation dated 31 December 2018, the applicant deposed that:

“The [judges] were wrong in law in holding that there was no state acquiescence or involvement.

The [judges] also failed to find out the clear details of the current situation of Indonesia.”

5.The applicant lodged written submissions in support of the application on 8 February 2019.  In the submissions, she relied on a number of authorities without explaining how they are relevant.  She lodged submissions again on 7 May 2019 in which she explained why it is dangerous for her to return.

6.Having considered the applicant’s Notice of Motion, affirmation and written submissions, we see no reason to depart from the usual practice of determining an application of this kind on papers.  We have, therefore, determined the applicant’s application on the basis of the Notice of Motion, affirmation and written submissions.

7.The matters stated by the applicant in the Notice of Motion and written submissions do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters she has raised in the Notice of Motion and written submission.

8.As we have held at [12] of our judgment, the actual position was that the applicant failed to complete her NCF and her case was thus deemed to be withdrawn.  None of the grounds identified by the applicant is relevant to this issue.  In our view, they are not reasonably arguable before the Court of Final Appeal.

9.We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.For these reasons, the Notice of Motion dated 31 December 2018 is dismissed.

The applicant acting in person