ENDANG SUSILOWATI SAMUJI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 555 /2019

[2020] HKCA 607

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 555 OF 2019

(ON APPEAL FROM HCAL NO 2520 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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 (Kwan VP and Barma JA) handed down on 28 May 2020 ([2020] HKCA 381). The 1^st applicant made this application on her own behalf and on behalf of her daughter the 2^nd applicant, who is a minor. The Court of Appeal dismissed their appeal against the decision of Deputy High Court Judge K W Lung on 21 November 2019 ([2019] HKCFI 2843) refusing leave to apply for judicial review concerning their non-refoulement claim.

2.  The applicants’ torture claim was refused by the Director of Immigration (“the Director”) on 26 November 2012.  Their non‑refoulement claim was rejected by the Director by a Notice of Decision dated 16 April 2018.  Their appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board(“the Board”) on 12 September 2018.

3.  The 1^st applicant filed a Form 86 on 9 November 2019 to seek leave to apply for judicial review against the decisions of the Director and the Board.  Leave was granted to her to add her daughter as the 2^nd applicant. Their application was refused by Deputy High Court Judge K W Lung on 21 November 2019.

4.  The applicants filed a Notice of Appeal against the decision of the judge on 4 December 2019.  The appeal was scheduled to be heard by the Court of Appeal on 27 May 2020.  The hearing was vacated as the applicants failed to lodge their skeleton argument by the extended deadline prescribed under the direction of Kwan VP on 17 April 2020.  The appeal was dealt with on paper. The applicants only lodged a skeleton argument belatedly on 28 May 2020, the same day when the judgment of the Court of Appeal was handed down dismissing their appeal.  They then filed a Notice of Motion on 24 June 2020 for leave to appeal to the Court of Final Appeal.

5.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed on 29 June 2020 that the Notice of Motion shall be determined on paper only without an oral hearing and that the applicants shall lodge a written submission on or before 8 July 2020. The applicants have not lodged a submission pursuant to the direction. Having considered the papers, including the skeleton argument that was lodged belatedly on the last occasion on 28 May 2020, we think it appropriate to determine this application on paper and will proceed to do so.

6.  The applicants stated in the Notice of Motion that the court disregarded their dangerous situation in their country and casually dismissed their problematic situation in Indonesia, which constituted an error of judgment.

7.  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.

8.  The basis of the applicants’ claims in their skeleton argument of 28 May 2020 had been considered thoroughly by the Director and the Board, who are the primary decision makers, and rejected for the reasons given by them in their respective decisions. As has been stated in the judgment of the Court of Appeal, the role of the court in a judicial review is not to provide a further avenue of appeal.

9.  The applicants’ grounds of appeal are bare assertions without particulars, elaboration or evidence in support.  They do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal. The applicants have not demonstrated any reasonably arguable basis of any error of law or procedural unfairness or irrationality such that the Court of Appeal was wrong in dismissing their appeal.  Nor have they identified 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 their application for leave to appeal to the Court of Final Appeal.