AHIRE SANDHYA BHASKAR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CAMP 466 /2021

[2022] HKCA 1760

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 466 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 153 OF 2019)

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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 Yuen JA) handed down on 8 April 2022 ([2022] HKCA 485). The Court of Appeal refused to grant leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan dated 26 February 2021 refusing to grant leave for the applicant to seek judicial review concerning her non-refoulement claim^[1].

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 29 June 2022 that the applicant shall lodge written submissions on or before 13 July 2022.  It was further directed that the 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 India.  She came to Hong Kong on 8 April 2007 as a visitor and subsequently overstayed.  She surrendered to the Immigration Department on 20 May 2014.  She lodged a non-refoulement claim on 6 January 2017 on the basis that if she were to return to India, she would be harmed or killed by state authorities or the community because of her interfaith marriage.

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 7 October 2021^[2]. 

5.  On 19 October 2021, the applicant filed a renewed application for leave to appeal out of time. The application was dismissed by the Court of Appeal on 8 April 2022 as she failed to show any prospect of success in her intended appeal.

Grounds of appeal

6.  The grounds of appeal in the Notice of Motion may be summarised as follows:

(1)  The decision maker did not consider her summons and did not scrutinise her problem properly.

(2)  If she returns to her home country, she will be killed by her enemy.

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 for more than 7 weeks in filing her Notice of Motion.  In her affirmation, she has not provided any explanation for the delay.  There is no good reason for the court to grant her an extension of time to file her Notice of Motion. 

10.  In any event, the applicant has not provided any particulars or evidence in support of her grounds in the present application. She failed to show that the Court of Appeal was wrong in dismissing her application.

11.  Furthermore, 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).

12.  For the above reasons, we dismiss the Notice of Motion filed on 29 June 2022 for leave to appeal to the Court of Final Appeal.