KASIRA v. TORTURE CLAIMS APPEAL BOARD

CACV 544/2021

[2022] HKCA 1686

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 544 OF 2021

(ON APPEAL FROM HCAL NO 1179 OF 2021)

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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 and Lisa Wong J) handed down on 27 May 2022 ([2022] HKCA 732). The Court of Appeal rejected her appeal against the decision of Deputy High Court Judge Bruno Chan dated 24 November 2021 ([2021] HKCFI 3547) refusing to grant leave for the applicant 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 6 June 2022 that the applicant shall lodge written submissions on or before 20 June 2022. It was further directed that the present Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Indonesia. She last arrived in Hong Kong on 2 September 2008 to work as a foreign domestic helper. Her employment contract was prematurely terminated on 4 February 2009. She subsequently overstayed and was arrested by the police on 6 November 2010. She lodged a torture claim on 16 November 2010 and subsequently withdrew it on 30 August 2012. She was allowed to re-open her torture claim on 19 March 2021 which was then considered on all applicable grounds under the unified screening mechanism. Her claim was made on the basis that she will be harmed or killed by her father, a moneylender and his people as she failed to remit money to her father to repay the debt.

Grounds of appeal

4.  In the Notice of Motion filed on 6 June 2022, the applicant stated the following grounds of appeal:

(1)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director of Immigration (“the Director”).

(2)  The judges were wrong as a matter of law for not applying the principle of irrationality to the decision made by the Director in refusing the application for judicial review.

(3)  There is some error in law in the decision. The decision maker just relied on the Country of Origin information (“COI”) and previous facts which favour the rejection of the applicant’s claim.

(4)  The actual situation is different from the COI. The immigration officer and the court ignored the evidence of violence towards minorities, searching for unrealistic silver lining.

(5)  The judge did not apply the law properly and there is procedural unfairness.

(6)  The applicant’s life is in danger in her country. She will be killed or harmed if she returns to her country.

Analysis and disposition

5.  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.

6.  The applicant has not provided any evidence or sufficient particulars to support her grounds of appeal in the present application. She failed to demonstrate that the Court of Appeal was wrong in dismissing her appeal. Besides, she 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).

7.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 6 June 2022.