Re Sri Martuti

CACV 110/2022

[2022] HKCA 1366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 110 OF 2022

(ON AN APPEAL FROM HCAL NO. 543 OF 2019)

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Before:  Hon Chu JA and B Chu J in Court

Date of Judgment: 16 September 2022

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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 20 July 2022, this court handed down a judgment ([2022] HKCA 1054) dismissing the applicant’s appeal against the decision of Deputy High Court Judge To given on 16 March 2022 refusing her application for leave to apply for judicial review.

2.On 2 August 2022, the applicant filed a Notice of Motion to apply for leave to appeal this court’s judgment to the Court of Final Appeal. After the time for lodging written submissions prescribed by the Registrar for Civil Appeals, she put in a written submission on 22 August 2022.

3.Having considered the 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 have 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 stated that: 

(1)  While the Court has confirmed the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”), what if the applicant’s fear and claim were materialised and how could one conclude that she would not be harmed upon being refouled to her country?

(2)  There has been a failure to consider: (a) the country of origin condition in that the authority of the applicant’s country would not protect her; and (b) the applicant’s claim under the BOR 2 and BOR 3 grounds.  

7.The written submission argued that the Board and the Director failed to take into account relevant consideration or had taken into account irrelevant consideration in that they failed to give due regard to (1) the high standard of fairness, and (2) the applicant’s claim was based on the true story of her life, and her life would be at risk if she returned to her country.  It further argued that although this Court held there was no merit in the appeal, the applicant’s claim was not a private and personal matter and the decision maker(s) had not considered her fear properly.

8.All the matters stated in the Notice of Motion and written submission relate solely to the circumstances and facts of the applicant’s claim.  No question of great general and public importance has been identified, as required by section 22(1)(b) of the Ordinance, had been identified.  Further, the matters put forward by the applicant do not engage the reasons for dismissing her appeal (see [20] of our judgment).  We also do not see any basis for the “or 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.

The applicant, unrepresented, acting in person.