HETY KUSENDANG v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 67/2020

[2020] HKCA 965

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 67 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 200 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 (Kwan VP and Barma JA) handed down on 23 October 2020 ([2020] HKCA 840) refusing to grant leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan dismissing her application for leave to apply for judicial review concerning her non-refoulement claim. The applicant is a national of Indonesia. Her claim was made on the basis that she would be harmed or killed by her sister’s creditor for failing to repay a loan on behalf of her sister and/or by the Muslim majority in her home village for being a Christian. She filed her Notice of Motion on 28 October 2020.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 30 October 2020 that the applicant should lodge written submissions in support of her Notice of Motion on or before 11 November 2020 and that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the direction or the expiry of the time for the compliance of the direction.  The applicant did not lodge any written submission as directed.  As the time for the compliance with the said direction has expired, we would determine this application without a hearing on the basis of the documents filed in court.

3.  The applicant took out a summons in the court below to seek an extension of time to appeal against the decision of DHCJ Bruno Chan. Her application was late by eight days.  It was refused by the judge on 18 June 2020[1]. The applicant renewed her application to the Court of Appeal for extension of time to appeal on 29 June 2020.

4.  On 23 October 2020, the Court of Appeal refused to extend time to appeal against the decision of DHCJ Bruno Chan because of the lack of merits of the intended appeal.

5.  In the Notice of Motion filed on 28 October 2020, the applicant set out her grounds of appeal as follows:

(1)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration refusing her application for judicial review.

(2)  The judges were wrong as a matter of law for not having applied the principle on procedural unfairness to the decision of the Director by which the Director is required to give reasons justifying the decision.

(3)  She will face hardship if she returns to her country. The Torture Claims Appeal Board significantly relied on the source of news which is not officially recognized or is simply hearsay.

(4)  The judges did not apply the law properly.

6.  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.

7.  The applicant confusingly stated some bare assertions as her grounds of appeal without providing particulars, elaboration and evidence in support.  She has not shown any merits in her intended appeal.  In particular, she has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing her application.  She has also 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).

8.  A line of authority suggests that appeals against a refusal of extension of time to appeal by the Court of Appeal are not susceptible to further appeal and another authority is to the contrary (Re Mohammed Selim [2020] HKCFA 25 at §§6 to 7).  In light of the above conclusion on the lack of merits, it is not necessary to resolve whether the appeal lies to the Court of Final Appeal from the Court of Appeal’s refusal of an extension of time to appeal or from the decision of the Court of First Instance refusing leave to apply for judicial review.

9.  For the above reasons, we dismiss the Notice of Motion filed on 28 October 2020 for leave to appeal to the Court of Final Appeal.