RE SHAHI YASODA

CAMP 169/2019

[2021] HKCA 1218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 169 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 311/2018)

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J U D G M E N T

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

1.  On 23 March 2021, this court (Poon CJHC and Barma JA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Josiah Lam (“the judge”) on 17 April 2019 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal from the decision of the Director of Immigration rejecting her their non‑refoulement claim.

2.  The facts and issues in the application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion filed on 24 March 2021, for leave to appeal to the Court of Final Appeal.  The applicant simply stated in the Notice of Motion that:

“Apply for leave from High Court of Appeal”

4.  The applicant lodged a written submission in support of the application on 7 April 2021.  In the written submission, the applicant submitted that “the failure of the High Court to take into account the actual application of the Nepali Constitution on untouchable women like her in Nepal in the judgment…on 23 March 2021 calls for attention”. 

5.  She further submitted that this court was wrong in holding that the ground based on family reunion was not advanced before the judge.  This is because the applicant had advanced a ground based on the unreasonableness and unfairness in the Board’s Decision in the Form 86.

6.  Having considered the applicant’s Notice of Motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters she has raised.

8.  The applicant claimed that her ground based on family reunion had already been enshrined in the ground in the Form 86 based on unreasonableness and unfairness in the Board’s Decision.  As noted by the judge at [28] of CALL-1 Form, that ground in the Form 86 lacked particulars.  The applicant’s attempt to expand an unfocused and therefore unmeritorious ground for judicial review to accommodate a new challenge on appeal is clearly impermissible process.

9.  The applicant exhibited a number of documents to her submission, which were never exhibited before the judge.  No leave to adduce them as new evidence has ever been sought and there was no explanation as to why they were not exhibited before the judge.  We therefore do not give any weight to those documents.

10.  As for the arguments raised under the section “Additional basis for advancing a case on the BOR 2”, the applicant copied disparate paragraphs from her claim form, the decisions by the Board and the Director and other documents, but without any coherent argument.

11.  The only identifiable complaint in this section was that this court failed to “take into consideration the actual application of the Nepali Constitution in Nepal…by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision”.

12.  This argument was never raised in her application for extension of time or the application for leave for judicial review and this court therefore did not deal with it in the judgment dated 23 March 2021.  Further, for the reasons given in [15] of our judgment, it is not open to the applicant to raise new matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings.

13.  We are of the view that the application is devoid of merit and none of the grounds of application is reasonably arguable before the Court of Final Appeal.

14.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

15.  For these reasons, the Notice of Motion dated 24 March 2021 is dismissed.