RE PUNAM GHARTI MAGAR SINJALI

CACV 84/2019

[2019] HKCA 918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 84 OF 2019

(ON APPEAL FROM HCAL NO. 1179 OF 2018)

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D E C I S I O N

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

1)  Leave to appeal to Court of Final Appeal

1.1  On 19 June 2019, this Court handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung given on 15 February 2019 in which he refused to grant leave to the applicant to apply for judicial review (‘Decision of the Judge’).

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

1.3  The applicant now applies, by a notice of motion dated 20 June 2019, for leave to appeal against our judgment to the Court of Final Appeal.

1.4  The applicant stated in notice of motion that her complaints were not considered by the Court of Appeal.  This lacks any meaningful particulars.

1.5  The applicant’s written submission also lacked specificity and relevance.  She reiterated problems of state acquiescence in Nepal.  She complained that the Director did not understand the situation in Nepal.  She complained that the unified screening mechanism is wrong.  She complained that the Board who dealt with her case was the same person who dealt with her case at the Immigration Department, when it was not.  

2)  Legal principles

2.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’) 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.

3)  Our view

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

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

4)  Disposition

4.  For these reasons, the notice of motion dated 20 June 2019 is dismissed.

CACV 84/2019

[2019] HKCA 689

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 84 OF 2019

(ON APPEAL FROM HCAL NO. 1179 OF 2018)

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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) :

1)  The appeal

1.1  This is an appeal by the applicant against the decision of Deputy High Court Judge K.W. Lung given on 15 February 2019 in which he refused to grant leave to the applicant to apply for judicial review.

1.2  This appeal was scheduled to be heard on 18 June 2019.  Despite the directions contained in the letter from the High Court to the applicant dated 12 March 2019, the applicant failed to lodge a skeleton argument by 21 May 2019.  Accordingly, the hearing was vacated and we will deal with this appeal on paper.

2)  Factual background

2.1  The applicant is a national of Nepal. She entered Hong Kong on 3 March 2014 as a visitor, but she overstayed.  On 15 October 2016, she was arrested by the Police.  She raised a non-refoulement claim on 15 November 2016.

2.2  The basis of the applicant’s claim is that she would be harmed or killed by Ajay Shrestha’s (‘Ajay’) family and their debt collectors from the Rastriya Banijya Bank of Nepal (‘the Bank’).  She claimed that her father and daughter were murdered.

2.3  The background facts have been summarized in the decision of the Judge at [2] and [3].

3)  The Director’s Decision

3.  The Director decided against the applicant’s torture claim on 25 August 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (risk of life) risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 12 April 2018, the Board dismissed the applicant’s appeal on 30 April 2018 (‘the Board’s Decision’).

4.2  The Board found the applicant’s claims regarding violence from her alleged debt collectors not credible.  The applicant was unable to establish that there are substantial grounds that she would face real risk of ill‑treatment if refouled.  The country of origin information for Nepal does not show that she would be subjected to rape or murder as a woman in Nepal.  Further the applicant had not provided evidence as to the death of her father and daughter.

5)  Decision of the Judge

5.  The Judge held that many of the applicant’s grounds for leave for judicial review were bare allegations.  The Board was also entitled to ask the applicant for evidence to prove her case, the burden of proof being on her.  He held that the evaluation of evidence was also essentially a matter for the Director and/or the Board.

6)  Grounds of appeal

6.1  The applicant in the notice of appeal generally stated that the gravity of her circumstances has not been weighed, and that she should be given the chance to plead her case properly.

6.2  The applicant in her supporting affirmation gave bare assertions that there are good grounds of appeal.  She also complained that the Judge failed to consider her arguments but she did not give any further explanation.  

7)  Our view

7.1  We are of the view that the applicant’s appeal is without merits.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors of law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [38] and [39].  None of these errors exists in this case.

7.2  Accordingly, the appeal is dismissed.