YUYUN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULMENT CLAIMS PETITION OFFICE

CAMP 234/2022

[2023] HKCA 362

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 234 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2781 OF 2018)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

1.  On 15 December 2022, this Court gave its judgment (“the CA Judgment”) dismissing the Applicants’ application for an extension time to appeal against the order of Deputy High Court Judge K W Lung dated 2 March 2022 refusing to grant them leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 3 October 2018, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 28 February 2018 rejecting the Applicants’ non-refoulement claims.

2.  By Notice of Motion dated 22 February 2023, the Applicants apply for leave to appeal the CA Judgment to the Court of Final Appeal. In the Notice of Motion, the following is stated:

“Director of Immigration and Torture Claims Appeal Board dismissed our non refoulement claim for protection. 2^nd Applicant is a minor but we did not get any sympathy. Finaly we want to go to the Court of Final Appeal” [sic]

3.  In the written submissions of the 1^st Applicant dated 8 March 2023, she repeats the immigration history of herself and the 2^nd Applicant. She also says that the 2^nd Applicant has no place to go and has no “state”, and his situation was not considered by the Director or the Board.

4.  Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter 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.

5.  The Applicants have delayed substantially in making the application for leave to appeal. No explanation for the delay has been given.

6.  The Applicants’ complaints in the Notice of Motion and in the 1^st Applicant’s submissions concern their specific circumstances. No question of great general or public importance involved in the proposed appeal is identified in the Notice of Motion. We are unable to see any such question being involved in the proposed appeal.

7.  We are satisfied that the intended appeal has no merits and no reasonable prospect of success. In particular, insofar as the 1^st Applicant is alleging that the 2^nd Applicant is a stateless person, this allegation is contrary to the Director’s finding and the Board’s finding that the 2^nd Applicant is a national of Indonesia (see page 1 of the Director’s Decision dated 28 February 2018 and paragraph 1 of the Board’s Decision dated 3 October 2018). That finding was in turn based on the information provided by the 1^st Applicant herself (see Question and Answer 10 of the Supplementary Claim Form dated 27 January 2018 and signed by the 1^st Applicant). There was no challenge to this finding in the application for leave to apply for judicial review, or in the application to this Court for leave to appeal against the Judge’s decision. We do not consider that it is open to the Applicants to raise this new allegation in the present application for leave to appeal to the Court of Final Appeal. Insofar as the 1^st Applicant is alleging that the 2^nd Applicant’s situation was not considered by the Director or the Board, this issue was considered at paragraphs 21 to 25 of the Judge’s decision and paragraphs 17 to 19 of the CA Judgment.

8.  There is also no basis to grant leave to appeal on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

9.  Accordingly, the application for leave to appeal is refused and the Notice of Motion is dismissed.

10.  For the avoidance of doubt, the non-compliance with Order 80 rule 2 in these proceedings is treated as a mere irregularity without rendering the 2^nd Applicant’s application a nullity.