Re Hussain Rowena Cayabyab

CACV 441/2021

[2022] HKCA 1446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 441 OF 2021

(ON APPEAL FROM HCAL NO. 2045 OF 2018)

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Before :  Hon Cheung and Chow JJA in Court

Date of Judgment :  28 September 2022

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J U D G M E N T

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

I.  Leave to appeal to the Court of Final Appeal

1.On 26 January 2022, this Court (Cheung and Chow JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 1 September 2021 in which he refused to grant leave to the applicant to apply for judicial review.

2.The facts and issues of the appeal as well as the Court’s reasons for dismissing it are set out in our judgment. We will not repeat them here.

3.The applicant now applies, by a notice of motion filed on 10 February 2022, for leave to appeal against our judgment to the Court of Final Appeal. The applicant in his notice of motion raised two points for seeking leave to appeal which can be summarized as follows :

1)  The Court adopted the reasoning of the Board on a wholesale basis without questioning the process of the fact‑finding exercise. The question of general public importance is : what is the Court’s role when Board decisions are challenged before it. It is unknown how the credibility of the applicant was reached by the Board (‘Point 1’).

2)  The main complaint of the applicant is the fact‑finding process of the Board. It is wrong to conclude that the applicant’s credibility is questionable simply because there were inconsistencies in her evidence. Credibility should not be the sole decisive factor to conclude there is no risk of harm in the applicant being repatriated (‘Point 2’).

4.Pursuant to the directions of the Registrar of Civil Appeals dated 10 February 2022, the applicant shall on or before 24 February 2022 lodge with the Court written submissions in support of her application for leave to appeal to the Court of Final Appeal. The applicant has not lodged any written submissions by the stipulated deadline. We will deal with this application on paper.

II.  Our view

5.Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘Ordinance’) leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

6.The matters stated by the applicant in his notice of motion do not constitute grounds for granting leave to the Court of Final Appeal. The applicant has failed to identify any question of general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the Ordinance. Nor is there any such question apparent to us from the matters he has raised in his notice of motion.

7.Another important point is that none of what is contained in the applicant’s notice of motion had ever been mentioned in the Court below. They are new points taken on appeal which goes against the proper appellate principles: Flywin v Strong. In any event, we will address the notice of motion below.

8.For Point 1, the role of the Court in judicial review is well established and does not require further clarification. How the Board assesses the credibility of an applicant is clearly fact specific.

9.For Point 2, the Board did not merely find that the applicant was incredible simply because there were inconsistencies in her evidence. We have held at [7] of our judgment that the Board found ‘most aspects of the applicant’s evidence was contradictory’. She was not accepted as a witness of truth. This is a far outcry from being simply finding inconsistencies. None of her claims were credible. Not only did the Board rule on credibility, but the Board also concluded that the applicant had failed on all applicable grounds on non‑refoulement. There is hence no basis for the applicant’s complaint that her case was solely rejected on credibility alone.

10.We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b) of the Ordinance.

III.  Disposition

11.For these reasons, the notice of motion dated 10 February 2022 is dismissed.

Applicant, unrepresented, acting in person