Re Garcia Ferlyn Luzon

CACV 443/2020

[2021] HKCA 534

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 443 OF 2020

(ON APPEAL FROM HCAL NO. 696 of 2018)

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Before:  Hon Cheung and Chu JJA and ST Poon J in Court

Date of Judgment:  26 April 2021

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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 15 March 2021, this Court (Chu JA and ST Poon J) handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 2 September 2020 refusing her leave to apply for judicial review.  

2.On 26 March 2021, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant has also lodged a written submission on 8 April 2021 pursuant to the directions given by the Registrar of Civil Appeals.

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 papers in this application. 

4.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.

5.The notice of motion contained one ground of appeal.  It is that the Board and the Judge had disregarded the applicant’s dangerous situation in her home country.

6.The applicant’s written submission is mostly the same as the written submission lodged in support of the appeal before this Court (see [11] of our judgment).  The only new argument in the written submission dated 8 April 2021 is that it is the Director’s responsibility to assess a claim, and although he had looked into the information, he had failed to consider the factors in the local context and to understand the intricacies of the situation in the applicant’s country.

7.We are of the view that the ground of appeal and the arguments in the notice of appeal and the written submission do not constitute proper grounds to be submitted to the Court of Final Appeal for determination.

8.First and importantly, the applicant has not identified any question of great general or public importance as required by section 22(1)(b).

9.Second, for the reason given in [13] to [21] of our judgment, the ground of appeal and the arguments are unarguable. In particular, we had pointed out that evaluation of risk of harm is primarily a matter for the Director and the Board, who are the primary decision makers. The Board had rejected the applicant’s case that she was pursued by her former boyfriend’s family or would be harmed by them.  The Court in judicial review proceedings will only interfere if she can demonstrate there is unlawfulness, irrationality or procedural unfairness in the decision making process.  The applicant has not advanced any ground for seeking relief in her application or leave to bring judicial review.  Her mere assertion that she would be in danger if refouled is not a proper ground for judicial review.  Further, the applicant has not identified any error in the judge’s decision and reasons.  We had examined the Board’s decision and the Judge’s decision.  We do not find any basis to disturb the Judge’s decision.

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

11.For the above reasons, the statutory requirements for giving leave to appeal is not met.  Accordingly, we dismiss the Notice of Motion.

The applicant, unrepresented, acted in person.