ANU GURUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 73/2022

[2023] HKCA 181

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 73 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2276 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Yuen JA) handed down on 26 August 2022 ([2022] HKCA 1205). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge P Li dated 30 March 2021 refusing to grant leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement claim[1].

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 31 August 2022 that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged her written submissions on 7 September 2022. Having considered her written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of India. She came to Hong Kong on 12 November 2013 to work as domestic helper. Her contract was terminated on 28 February 2017 and she was arrested for overstaying on 3 March 2017. She lodged her claim for non-refoulement protection on 29 December 2017 on the basis that she would be harmed or killed by members of a “revolving fund” group due to a financial dispute.

4.  She took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 24 February 2022[2].

5.  On 3 March 2022, the applicant filed a renewed application for extension of time to appeal. The application was dismissed by the Court of Appeal on 26 August 2022 as the applicant failed to show any prospect of success in her intended appeal.

Grounds of appeal

6.  The applicant filed a Notice of Motion on 31 August 2022 to seek leave to appeal to the Court of Final Appeal. Her grounds of appeal are as follows:

(1)  the court failed to consider the fact that the applicant would face real risk upon refoulement and that she was late in filing her appeal because she did not receive the decision in time; and

(2)  the court failed to consider the country of origin condition.

7.  In her written submissions, she further contended that the Board and the Director of Immigration failed to take into account and/or give proper weight to relevant considerations and materials, hence the decisions are illegal.

Analysis and disposition

8.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

9.  The applicant’s grounds and submissions are just bare assertions without evidence in support. The Court of Appeal has duly considered the applicant’s explanation for the delay and given reasons for refusing to grant extension of time in the judgment dated 26 August 2022. The applicant failed to demonstrate that the Court of Appeal was wrong in dismissing her application, nor did she identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

10.  For these reasons, we dismiss the Notice of Motion filed on 31 August 2022 and refuse to give leave to appeal to the Court of Final Appeal.