DAS CATHERINE ANTHONY v. TORTURE CLAIMS APPEAL BOARD

CAMP 418/2022, [2023] HKCA 1205

On appeal from [2022] HKCFI 874

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 418 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2467 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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 handed down on 4 April 2023 ([2023] HKCA 504). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 25 March 2022 dismissing the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning the applicant’s non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged her written submissions on 23 June 2023. Having considered her written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of India. She arrived in Hong Kong in 1984 with permission to remain as a foreign domestic helper. Her last employment was prematurely terminated in 2003 and she subsequently overstayed. She surrendered to the Immigration Department on 9 October 2014 and sought non-refoulement protection on the basis she would be harmed or killed by her husband if she is refouled to India.

4.  She took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 27 September 2022[1].

5.  On 10 October 2022, the applicant filed a renewed application for extension of time to appeal. The application was dismissed by the Court of Appeal on 4 April 2023 as the applicant failed to show any prospect of success in her intended appeal.

Grounds of appeal

6.  The applicant filed a Notice of Motion on 9 June 2023 to seek leave to appeal to the Court of Final Appeal but she did not provide any specific ground of appeal in the Notice of Motion or in her supporting affidavit. In her written submissions, she essentially repeated the factual basis of her non-refoulement claim and reiterated her fear of returning to India due to the risk of harm caused by her husband.

Analysis and disposition

7.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), 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. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

8.  Section 22(1)(b) of the 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.

9.  The applicant was late by over 5 weeks in filing the Notice of Motion and provided no explanation to justify the delay. Thus, there is no good ground for the court to grant extension of time to file the Notice of Motion.

10.  In any event, the applicant’s submissions are not supported by any particulars or evidence. The applicant further failed to demonstrate that the Court of Appeal was wrong in dismissing her application. Lastly, she is unable to establish there is 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).

11.  For these reasons, the Notice of Motion filed on 9 June 2023 for leave to appeal to the Court of Final Appeal is dismissed.