Case Document

100%Judiciary

CACV 467/2021
CACV 575/2021
(Heard together)

[2022] HKCA 1096

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 467 OF 2021

(ON APPEAL FROM HCAL NO. 1321 of 2019)

__________________________

RE

CAYAO KRISTYL MEI TUPAS

Applicant

__________________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 575 OF 2021

(ON APPEAL FROM HCAL NO. 3176 of 2019)

__________________________

RE

CAYAO KRISTYL MEI TUPAS

Applicant

__________________________

(Heard together)

Before: Hon Chu JA and ST Poon J in Court

Date of Judgment: 1 August 2022

________________

JUDGMENT

________________

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

1.On 13 June 2022, this Court handed down our judgment ([2022] HKCA 833) dismissing the applicant’s appeals the decisions of Deputy High Court Judge P Li given on 11 October 2021 (CACV 467/2021) and 20 December 2021 (CCV575/2021), which refused to give her leave to apply for judicial review in HCAL 1321/2019 and HCAL 3176/2019 respectively.

2.On 21June 2022, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal. She has also put in a written submission to support her application.

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 documents in the case.

4.The background to this case and the applicant’s claim has been set out in our judgment. We will not repeat them.

5.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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.

6.The notice of motion contained the following grounds of appeal:

(1) The Board and the Director failed to comply with their duties to make sufficient enquiries into the conditions of the country of origin and had adopted a passive approach, contrary to the high standards of fairness stated in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at [54] and [55] and TK v Jenkins (unreported) CACV 286/2011, 21 November 2012, at [22] and [23].

(2) The Board and the Director failed to take into account or give proper consideration to the fact that: (a) the applicant’s life was dangerously threatened by her enemies and she would be harmed if she returned to her country; and (b) the applicant must have been placed in severe mental distress as a result of being targeted or traced by her enemy wherever she was in her country, and she could not get state protection.

(3) The Court of Appeal said that the applicant’s claim has no merit, but the applicant can prove that she faces real risk of harm in her country. Although the appeal may relate to private and personal matter, the applicant’s claim is real.

7.The written submission in substance repeats the grounds of appeal. It argues that the Board and the Director failed to take into account or give proper weight to relevant considerations, and did not follow the high standard of fairness or focus on the applicant’s fear of danger to her life. It also contends that while the Court found no merits in the claim, the applicant’s claim is real and she had tried to explain her situation but it had not been considered.

8.We are of the view that the matters set out in the notice of motion and written submission do not afford any basis for granting leave to appeal. Importantly, they do not show that the intended appeal involves any question of great general or public importance. Further, they are general and vague assertions which are unarguable for the reasons given in [25] to [30] of our judgment. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

9.As the statutory requirements for giving leave to appeal are not met, the notice of motion is dismissed.