ROBIAH AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 277/2022, [2023] HKCA 709

On appeal from [2022] HKCFI 2061

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 277 OF 2022

(ON APPEAL FROM HCAL NO 2930 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 applicants’ Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 13 January 2023 ([2023] HKCA 35). The Court of Appeal rejected the applicants’ appeal against the decision of Deputy High Court Judge To dated 8 July 2022 ([2022] HKCFI 2061) refusing to grant leave to apply for judicial review against the decision of the Torture Claims Appeal Board concerning their non-refoulement claims.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the Notice of Motion shall be determined on paper without an oral hearing. The applicants lodged written submissions on 2 February 2023. Having considered the written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The 1^st applicant last entered Hong Kong on 17 December 2006 to work as a foreign domestic helper. Her contract was prematurely terminated on 30 May 2008. She subsequently overstayed and was arrested on 28 July 2014. The 1^st applicant gave birth to her daughter, the 2^nd applicant, on 1 September 2017. The 1^st applicant is afraid that she will be killed for having HIV if she returns to Indonesia and she is also concerned that her daughter will be rejected by schools and discriminated against for having a parent with AIDS.

4.  In the Notice of Motion filed on 16 January 2023, the applicants only stated that they want to challenge the decision, without putting forward any specific grounds.

5.  In the written submissions, the 1^st applicant submitted that she failed to solve her problem and that the dismissal of her claim is not only her problem but also a problem for all asylum seekers as their claims were also dismissed by the Immigration Department.

6.  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.

7.  The applicants’ submissions in the present application are without substance. In particular, they failed to point out any error in the Court of Appeal’s decision, nor did they 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).

8.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 16 January 2023.