RIKA ASTUTI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 179/2020

[2021] HKCA 193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 179 OF 2020

(ON APPEAL FROM HCAL NO 1609 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, Chu JA and Barma JA) handed down on 6 January 2021 ([2021] HKCA 10). The Court of Appeal dismissed her appeal against the decision of Deputy High Court Judge K W Lung on 4 June 2020 ([2020] HKCFI 1016) dismissing the application for leave to apply for judicial review concerning her non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 22 January 2021 that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance of the direction for the applicant to lodge written submissions or the expiry of the time for complying with the direction.  The applicant failed to lodge written submissions as directed.  We think it appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Indonesia of 37 years old.  She came to Hong Kong in 2008 as a domestic helper and last entered Hong Kong on 8 July 2011.  After the early termination of her last contract, she overstayed and was arrested by the police on 14 May 2014.  She lodged a non-refoulement claim on the basis that she would be harmed or killed by her father's creditor.  This claim was received by the Immigration Department on 30 May 2014.

4.  Her non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 22 December 2016.  Her appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board(“the Board”) on 26 July 2018. 

5.  She filed a Form 86 on 13 August 2018 to seek leave to apply for judicial review against the decision of the Board.  Her application was refused by DHCJ K W Lung on 4 June 2020.

6.  On 15 June 2020, the applicant filed a notice of appeal against the decision of DHCJ K W Lung.  Her appeal was scheduled to be heard by the Court of Appeal on 5 January 2021 but was subsequently vacated as she failed to lodge her skeleton argument by the deadline under the direction of the Registrar of Civil Appeals on 28 October 2020.  The Court of Appeal dealt with the appeal on paper and dismissed it on 6 January 2021.  The applicant filed a Notice of Motion on 20 January 2021 for leave to appeal to the Court of Final Appeal.

7.  The applicant only stated in the Notice of Motion that she wants to challenge the decision dated 6 January 2021 without giving any specific grounds of appeal.

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.  In the present application, the applicant failed to put forward any grounds of appeal or 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.  We therefore dismiss her Notice of Motion filed on 20 January 2021 and refuse to grant leave to appeal to the Court of Final Appeal.