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

CACV 1 /2020

[2020] HKCA 669

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1 OF 2020

(ON APPEAL FROM HCAL NO 1042 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 Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Cheung JA) handed down on 9 June 2020 ([2019] HKCA 444) dismissing her appeal against the decision of Deputy High Court Judge Bruno Chan on 23 December 2019 ([2019] HKCFI 2666) refusing leave 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 16 June 2020 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant has lodged her written submission on 24 June 2020.  Having considered the Notice of Motion and the written submission, we think it appropriate to determine this application on paper and will proceed to do so.

3.  By a Notice of Decision dated 16 February 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim.

4.  The applicant appealed to the Torture Claims Appeal Board(“the Board”) against the Director’s decision and her appeal was dismissed by the Board on 1 June 2018.

5.  The applicant filed a Form 86 on 8 June 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  DHCJ Bruno Chan dismissed her application on 23 December 2019 after a hearing on 15 October 2019. 

6.  The applicant filed a Notice of Appeal against the decision of the judge on 2 January 2020.  The hearing date of the appeal on 27 May 2020 was vacated as the applicant failed to lodge her skeleton argument by the extended deadline prescribed under the direction of Kwan VP on 17 April 2020.  The appeal was dealt with on paper and was dismissed by the Court of Appeal on 9 June 2020.  The applicant filed this Notice of Motion on 15 June 2020 for leave to appeal to the Court of Final Appeal.

7.  In the Notice of Motion, the applicant stated as her grounds of appeal that she has problem in her home country in Indonesia and she cannot go back because danger is still there.  She requested the court to allow her to process her case further and give her some time to stay here so that she can solve her problem.

8.  In her written submissions, she submitted that:

(1)  She is unable to pay back her loan.  In Indonesia, death and torture are common in loan related cases.  Loan sharks are dangerous and they do not mind killing anyone who fails to repay a loan. 

(2)  Her enemies are still looking for her and will kill her when they find her.  Even the police cannot protect her from them. Her enemies have lots of manpower and strong political support which makes them so powerful.

(3)  Death and torture in police custody of innocent persons are common in her country and people who are responsible do this freely due to their power.  Even if the police arrest the culprits sometimes, they could bribe the police and come out due to the corrupt system.

9.  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.

10.  The applicant’s grounds of appeal and submissions do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal.  She has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing her appeal and 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).

11.  We therefore dismiss her application for leave to appeal to the Court of Final Appeal.