Case Document

100%Judiciary

CACV 651/2020

[2021] HKCA 1687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 651 OF 2020

(ON APPEAL FROM HCAL NO 1768 OF 2018)

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RE:

WIMALASURIYA DONA SHAYAMALIE

Applicant

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Before: Hon Barma JA and Linda Chan J in Court

Date of Judgment: 17 November 2021

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J U D G M E N T

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Hon Linda Chan J (giving the Judgment of the Court):

1.On 13 July 2021, this court (Barma JA and Linda Chan J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge P Li on 18 December 2020 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“Board”) dismissing her appeal from the decision of the Director of Immigration (“Director”) rejecting her non-refoulement claim.

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 filed on 23 July 2021, for leave to appeal to the Court of Final Appeal. The applicant stated in the Notice of Motion that:

“I am writing this grounds regarding my courts of appeal was dismissed by high court at 13-July-2021. But I would like to tell to court that still I have problem in my country for me, and I tried to obtain some document from Sri Lanka but [unable] to obtain because all island lockdown all the government offices are out of service for COVID-19 and in my home and family members are suffering from COVID-19. I pray for them to recover from corona and safe for their life. Now they are in corontine [sic] centre. Therefore give me the time for obtain my some document as soon as possible. I will try my best. Thank you.”

4.The applicant lodged written submissions in support of the application on 4 August 2021. In the written submissions, the applicant essentially repeated the matters in the Notice of Motion, attaching documentation seeking to prove that her family member(s) were suffering from COVID-19 (“Medical Evidence”).

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

6.The matters stated by the applicant 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.

7.The applicant has not taken out any application to adduce the Medical Evidence as evidence. It is not the practice of this court to allow new evidence to be adduced at this stage without any good reason. We would therefore attach no weight to what the applicant represented to be the effect of the Medical Evidence. In any event, the Medical Evidence is irrelevant and does not assist the applicant in the present application.

8.Neither the Notice of Motion nor the written submissions identify any supposed error in our judgment and therefore fail to raise any ground that is 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 23 July 2021 is dismissed.