DHALIWAL ARCHNA KAUR v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 278/2019

[2019] HKCA 1275

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 278 OF 2019

(ON APPEAL FROM HCAL NO 4 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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 handed down on 8 October 2019 ([2019] HKCA 1107) dismissing her appeal against the decision of Deputy High Court Judge Bruno Chan on 17 June 2019 ([2019] HKCFI 435) 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 October 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant has lodged her written submission on 28 October 2019.  It is appropriate to determine this application on paper.

3.  By a Notice of Decision dated 7 July 2016 and a Notice of Further Decision dated 26 September 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 decisions and her appeal was dismissed by the Board on 8 December 2017.

5.  She filed a Form 86 on 2 January 2018 to seek leave to apply for judicial review against the decisions of the Director.  Her application was refused by Deputy High Court Judge Bruno Chan on 17 June 2019.

6.  The applicant filed a Notice of Appeal against the decision of the judge on 24 June 2019.  The hearing of the appeal was vacated as the applicant failed to lodge her skeleton argument by the time prescribed under the unless order made by the Registrar of Civil Appeals on 16 July 2019.  The appeal was dealt with on paper.  It was dismissed by the Court of Appeal on 8 October 2019 as the applicant has not put forward any viable ground for the appeal court to reverse the judge’s decision.  The applicant filed a Notice of Motion on 14 October 2019 for leave to appeal to the Court of Final Appeal.

7.  In the Notice of Motion, the applicant stated that she cannot go back to her country because her life is in danger in her country.

8.  In her written submission, she submitted that the adjudicator acted in a procedurally unfair manner in dealing with her application without properly assessing her credibility.  She also stressed that high standards of fairness are required in the determination of a torture claim as the decision has a significant effect on the applicant’s claim.

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 are just bare assertions without substance or evidence in support.  She has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing her appeal. 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 the application for leave to appeal to the Court of Final Appeal.