Re Madriaga Nenita Magapan

CACV 135/2023, [2023] HKCA 992

On Appeal From [2023] HKCFI 503

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 135 OF 2023

(ON APPEAL FROM HCAL NO 597 OF 2019)

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DECISION

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Hon Anthony Chan J (giving the Decision of the Court)  :

1.This is the applicant’s Notice of Motion dated 27 July 2023 (“Notice of Motion”)  seeking leave to appeal to the Court of Final Appeal (“CFA”)  against the Judgment of this Court dated 21 July 2023 (“Judgment”)  by which the applicant’s appeal against a decision refusing her leave to apply for judicial review in respect of a decision of the Torture Claims Appeal Board (“Board”)  was dismissed.

2.Contrary to Practice Directions (“PD”)  2.1, para 2, no attempt was made in the Notice of Motion to identify any question that may meet the criteria of s.22 of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“Ordinance”), in respect of which leave is sought to have the same determined by the CFA. 

3.Pursuant to s.22 of the Ordinance, the question in respect of which leave is sought for determination by the CFA must be one which by reason of its great general or public importance, or otherwise, ought to be submitted to the CFA for decision.  We can discern no such question from the contents of the Notice of Motion.

4.Written submissions have been lodged with the Court by the applicant pursuant to PD 2.1, para 3(a).  We consider that this application can properly be determined on paper without an oral hearing. 

5.Three points were made in the Notice of Motion :

(1)  Failure to consider the facts which the applicant had raised in her application for non-refoulement;

(2)  This Court had made an error of law or facts because it only considered the decisions of the Board and the Director of Immigration but not the applicant’s fear and lack of opportunity;

(3)  Failure to consider the applicant’s claim under BOR 3 risk and the country of origin information. 

6.These points reflect the misconceived nature of this application.  It was pointed out in the Judgment that the role of the Court in a judicial review is not to provide a further avenue of appeal. Assessment of evidence, including country of origin information, was a matter for the Board.  This Court would only intervene on public law grounds: Judgment, [14].

7.Further, the points made in the Notice of Motion have not been elaborated in the written submissions.  They are bare assertions without particulars or specifics (see Judgment, [13]).  They cannot support this application. 

8.The written submissions are of the same nature, consisting of bare assertions. 

9.In the premises, we are unable to find merits in this application.  It is accordingly dismissed.

Applicant, unrepresented, acting in person