RE ALAYA AND ANOTHER

CAMP 74/2020

[2021] HKCA 868

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 74 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 865 OF 2017)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  On 11 March 2021, the 1^st applicant on behalf of the 2^nd applicant and herself filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court (Cheung and Au JJA)’s judgment of 1 March 2021 (“the Judgment”) [2021] HKCA 206. In the Judgment, we refused to grant extension of time to the applicants to appeal the decision of Deputy High Court Judge Bruno Chan on 13 February 2019, refusing to grant them leave to apply for judicial review.

2.  The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, 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.

3.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), leave to appeal to the Court of Final Appeal will only be granted 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.

4.  In the Notice of Motion, the 1^st applicant raised the following grounds of appeal:

“I ALAYA, My life is still in Danger My home Country, I was returned to Bangladesh. I would like to inform the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL information and my previous facts which were in favor while rejecting my claims. Actual life occur different situation then what is mentioned in COL information. The officer and courts perfect to ignore the overwhelming of the evidence of this violence towards minorities Searching for unrealistic silver lining. The decision is betray a bias and formula approach unlikely fairly access the dangerous of my life and clearly not reasonable.” [sic]

5.  She further stated that the applicants were appealing against the decisions of the Director of Immigration and the Torture Claims Appeal Board (“the Board”) as well as the courts because they failed to take into account many issues.  She then repeated their personal background and their claims.  She also submitted several grounds on procedural impropriety / unfairness and on irrationality against the Board.

6.  In their written submissions of 25 March 2021 filed pursuant to the directions of the Registrar of Civil Appeals, the applicants elaborated the grounds on procedural impropriety / unfairness and irrationality against the Board[1]. Further, they submitted that the matters involved in this appeal are of significant public importance with regards to the standard and approach adopted in the assessment of evidence and credibility of a non‑refoulement claim[2].

7.  In our view, the applicants’ application is totally without merits.  The arguments in their Notice of Motion and written submissions are effectively those advanced before this Court.  In the Judgment, we refused to extend time to the 1^st applicant as the applicants failed to provide cogent explanation for the delay and the 1^st applicant’s intended appeal had no merits (see [20] - [21]).  Further, we had separately considered the 2^nd applicant’s application as she was a minor.  We were of the view that the 2^nd applicant’s claim was properly dealt with by the Board and her intended appeal also had no merits.  Thus, we also refused to grant extension of time to the 2^nd applicant (see [28] - [31]).  Other than rehashing the arguments advanced but rejected by us, the applicants failed to pinpoint any specific errors in the Judgment.  These are therefore not viable grounds of appeal against the Judgment.

8.  In the circumstances and in any event, we also do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

9.  For these reasons, we refuse to grant leave to appeal to the CFA, and dismiss the applicants’ Notice of Motion.