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

CAMP 151 /2019

[2020] HKCA 134

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 151 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 411 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 application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 13 November 2019 ([2019] HKCA 1264) refusing to grant leave to appeal out of time against the judge’s decision dismissing her application for leave to apply for judicial review concerning her non‑refoulement claim.

2.  In the notice of motion filed on 31 December 2019, the applicant stated her grounds as follows:

“I would like to inform Court of Final Appeal there is some error in law in my decision. Decision maker just relied on COL [sic] information and my previous facts which were favor on reject my claim. Actual life occur different situation then mentioned COL Information. Officer and court prefers to ignore the overhelming[sic] of the evidence of the violence towards minorities searching for unrealistle[sic]silver lining. The decision betray a bias and frmula[sic] approch[sic] unlikely fairly access the danger of my life.”

3.  In her written submissions, the applicant submitted that:

(1)     It is unfair that the High Court judge never heard her in person.

(2)     The Director made the further decision without ensuring that the applicant was aware of her rights and the definitions behind BOR2.  The lack of language assistance and legal representation meant that she had no understanding of the process or the reason for rejecting her claim.  To date, the Board’s determination has not been explained to her via an interpreter.

(3)     The court and the authorities have been negligent and failed to perform a standard duty of care that specifically targeted non-refoulement claimants like her.  She is certain that she is not the only one who does not understand English and the court procedures and yet has been discriminated and was put at a disadvantage because of this.  

4.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed on 31 December 2019 that the notice of motion shall be determined on paper only without an oral hearing.  The applicant lodged her written submission on 13 January 2020.  We think it is appropriate to determine this application on paper and will do so accordingly.

5.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), an application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making application for leave to appeal. 

6.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance 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.  This application was late by 20 days.  Good grounds have to be shown by the applicant for the court to grant her an extension of time.  The relevant factors in considering whether extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (See: Re Rajaram Razeena [2019] HKCA 959 at §1.4).

8.  The applicant did not provide any explanation for her delay. 

9.  We are not satisfied there are any or any sufficient merits of her intended application for leave to appeal to the Court of Final Appeal.  The grounds stated in her notice of motion are just bare assertions without particulars or evidence in support.  Her submissions have already been dealt with in paragraphs 18 to 23 of the Court of Appeal judgment ([2019] HKCA 1264).  She has not pointed out any error of the said judgment in her present application.  In any event, she has failed to 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.  For the above reasons, we refuse to grant an extension of time and dismiss the notice of motion filed on 31 December 2019.