Re Caluza Vicky Balong and Another

CACV 159/2023, [2024] HKCA 1127

On Appeal from [2024] HKCA 323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 159 OF 2023

(ON APPEAL FROM HCAL NO 516 OF 2019)

_______________

_______________

_______________

J U D G M E N T

_______________

Hon Ng J (giving the Judgment of the Court):

1.By a judgment dated 30 April 2024 ([2024] HKCA 323) (“the Judgment”), this court dismissed the 1^st Applicant’s appeal against the decision of Deputy High Court Judge To (“the Deputy Judge”) dated 17 May 2023 ([2023] HKCFI 1286) whereby the Deputy Judge refused her application for leave to apply for judicial review.

2.On 10 May 2024, the 1^st Applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against the Judgment.

3.The facts and issues in the appeal, as well as this court’s reasons for dismissing it, are set out in the Judgment. We will not repeat them here. After reviewing the Notice of Motion and the written submissions referred to below at paragraph 6, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

4.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this court or the Court of Final Appeal 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.

5.In her Notice of Motion, the 1^st Applicant only stated:

“1. In the Judgment and order of 13 December 2023 that the 2^nd applicant Appeal be dismissed. And I was sole Applicant in my Appeal. The Judgment of 2 May 2024, there are written 1^st and 2^nd Applicant, where I was only 1^st Applicant in this Appeal.

2. The Honourable Judge failed to consider the fact I had raised in my claim that I will be face real risk upon refoulement to my country.” (sic)

6.Pursuant to Practice Direction 2.1, the 1^st Applicant lodged her written submissions on 22 May 2024. In those submissions, the 1^st Applicant recited her complaints of alleged procedural unfairness in the proceedings below, contended that this Court “did not focus [on] her fear”, and repeated her fear of threats to her life by her “enemies” should she be refouled. However, the 1^st Applicant had failed to explain how these matters were relevant to her present application.

7.At the outset, her intended appeal has no merits at all. The matters raised in her Notice of Motion and written submissions are all general and bare allegations. General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. Her allegations are essentially mere repetitions of those submissions she had previously made before this court in her appeal, which we had already considered and rejected.

8.The matters set out in the Notice of Motion and the written submissions fail to engage with the reasons given in the Judgment for dismissing her appeal and do not pinpoint any specific error in or raise any discernible grounds for disturbing the Judgment. Importantly, the 1^st Applicant has failed to identify any question of great general or public importance or indeed any other reason why her case ought to be submitted to the Court of Final Appeal for determination on the basis of the “or otherwise” limb as required by section 22(1)(b) of the HKCFAO.

9.Accordingly, we refuse to give leave to the 1^st Applicant to appeal to the Court of Final Appeal. The Notice of Motion is hereby dismissed.

The 1^st Applicant acting in person