SUTIMAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 98 /2020

[2021] HKCA 461

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 98 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1617 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 Au JA) handed down on 5 February 2021 ([2021] HKCA 145) refusing to grant leave to appeal out of time against the decision of Deputy High Court Judge K W Lung dismissing her application for leave to apply for judicial review concerning her non-refoulement claim.

2.  The applicant is a national of Indonesia.  Her non‑refoulement claim was made on the basis that she would be ill‑treated or killed by her ex-boyfriend if she is to be returned to Indonesia.  She filed her Notice of Motion on 18 February 2021.

3.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 22 February 2021 that the applicant should lodge written submissions in support of her notice of motion on or before 4 March 2021 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 compliance with the direction.  The applicant did not lodge any written submission as directed.  As the time for the compliance with the said directions has expired, this court would proceed to determine her application on paper accordingly.

4.  The applicant took out a summons in the court below to seek an extension of time to appeal against the decision of DHCJ Lung.  Her application was late by nearly 3 weeks.  It was refused by the judge on 2 July 2020^[1].  She renewed her application to the Court of Appeal for extension of time to appeal on 14 July 2020.

5.  On 5 February 2021, the Court of Appeal refused to extend time to appeal against the decision of DHCJ Lung because the applicant does not have any prospect of success in her intended appeal.

Grounds of appeal

6.  In the Notice of Motion filed on 18 February 2021, 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 irrationality to the decision made by the Director of Immigration (“the Director”) in refusing her application for judicial review.

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

(3)     The decision maker just relied on the Country of Origin Information (“COI”) and the applicant’s facts which favour the rejection of her claim.

(4)     Actual life occurs differently from the situation mentioned in the COI.  The officer and the courts ignored the overwhelming evidence of the violence towards minorities searching for unrealistic silver lining.

Analysis

7.  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.

8.  The applicant’s grounds of appeal are just bare assertions without particulars and evidence in support.  She has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing her application.  In particular, her application for leave to apply for judicial review was made against the decision of the Torture Claims Appeal Board (“the Board”), rather than the Director’s decision.  Her complaints pertaining to the irrationality and procedural unfairness of the Director’s decision were not raised in the court below.  It is not open to the applicant to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings. 

9.  In any event, the decision of the Director is not a decision that is susceptible to judicial review within this administrative structure, once an appeal to the Board is pursued by a claimant, as the decision by the Board has superseded the decision of the Director and represents the final decision on the claim at the end of its processing: Re Moshsin Ali^[2].

10.  Moreover, the applicant 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.  For all the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 18 February 2021.