Re Lisnawati and Another

CACV 446/2021

[2022] HKCA 973

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 446 OF 2021

(ON APPEAL FROM HCAL 2904 OF 2018)

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Before:  Hon Kwan Ag CJHC and Lisa Wong J in Court

Date of Notice of Motion:  7 June 2022

Date of Judgment:  29 June 2022

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J U D G M E N T

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Hon Lisa Wong J (giving the judgment of the court):

Application

1.Before the court is an application for leave to appeal to the Court of Final Appeal (“CFA”) against the judgment of this court (Kwan VP and Lisa Wong J) dated 27 May 2022 ([2022] HKCA 744) (“Judgment”).

2.By the Judgment, we dismissed the applicants’ appeal from the decision of Deputy High Court Judge P Li given on 8 September 2021 ([2021] HKCFI 2683) (“Judge’s Decision”) refusing the applicants leave to apply for judicial review of the decision given by the Torture Claims Appeal Board (“Board”) on 5 October 2018 (“Board’s Decision”) concerning their non-refoulement claims (“Claims”).

Paper disposal appropriate

3.Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing. Having considered the material available to us, we agree with the Registrar that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

4.Under s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA from any civil judgment of the CA 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 CFA for decision.

Applicants’ contentions in support of leave to appeal to CFA

5.The allegations upon which the Claims were made, the issues raised by the appeal from the Judge’s Decision and our reasons for dismissing the same have been set out in the Judgment and will not be repeated here.

6.By the notice of motion filed herein on 7 June 2022, the applicants stated: “I would like to reject and review the decision made by the court. They disregard my dangerous situation” (sic). Although the notice of motion made no mention of the 2^nd applicant, we shall treat the present application as having been made by both applicants.

7.On 21 June 2022, the 1^st applicant, acting for herself and on behalf of the 2^nd applicant, lodged written submission by which the applicants reiterated that: (1) if refouled, they would face danger from which the Indonesian law and police could/would not protect them and which they could not mitigate by relocation within Indonesia; (2) the Board and the court did not understand or have underestimated the danger they would face; and (3) the Board only selected Country of Origin Information that favours deportation.

Discussion

8.The complaints made in the notice of motion and the written submission merely regurgitated the assertions that had previously been made by the applicants before both the first instance judge and this court: see [18], [21] and [22] of the Judgment. They did not engage the reasons we gave in [24] to [33] for dismissing the applicants’ appeal against the Judge’s Decision.

9.As reminded by the CA in Ho Sin Ying v Chan Yui Ling, CACV 221/2013, 14 November 2014, at [2]-[3], the CA will not allow an application for leave to appeal to the CFA to be deployed to re-run the arguments already canvassed in the substantive appeal. In application of this nature, the party seeking leave should not seek to re-argue the points which had already been addressed at the appeal. The submission should focus on how it is contended that leave should or should not be given in accordance with the relevant criteria in s 22(1)(b).

10.In our view, the applicants have plainly not raised any issue for determination by the CFA, whether of great, general or public importance.

11.Nor do we see any scope to grant leave under the “or otherwise” limb.

Disposition

12.As neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met, we dismiss the notice of motion.

The applicant, unrepresented, appeared in person