EISMA PERLY CORBILLON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 48/2022

[2022] HKCA 1783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 48 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2088 OF 2018)

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J U D G M E N T

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Hon Kwan Ag CJHC (handing down 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 22 July 2022 ([2022] HKCA 1069). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge P Li dated 16 November 2021 ([2021] HKCFI 3364)  refusing to grant leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning her non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 1 August 2022 that the Notice of Motion shall be determined on paper without an oral hearing.  The applicant lodged her written submissions on 15 August 2022.  Having considered her written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of the Philippines.  She first came to Hong Kong in 1999 to work as a foreign domestic helper.  Her employment contract was prematurely terminated on 15 June 2006.  She subsequently overstayed and surrendered to the Immigration Department on 28 April 2011.  She lodged a torture claim in August 2011 which she later withdrew on 4 November 2011.  She lodged a non-refoulement claim on 29 August 2016 on the basis that she will be harmed or killed by her husband if she returns to the Philippines.

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 8 February 2022[1].

5.  On 11 February 2022, the applicant filed a renewed application for extension of time to appeal.  The application was dismissed by the Court of Appeal on 22 July 2022 as she failed to show any prospect of success in her intended appeal.

Grounds of appeal

6.  The applicant stated in the Notice of Motion filed on 1 August 2022 that she was not satisfied with the previous decisions and wanted to go to the Court of Final Appeal.

7.  In her written submissions, she reiterated the problems she faced in her home country and make the following further contentions:

(1)  The Director of Immigration (“the Director”)  and the Torture Claims Appeal Board (“the Board”)  did not consider her points.

(2)  The Court of First Instance did not find any error and the Court of Appeal considered the appeal not arguable.

(3)  Her problem is real and all asylum seekers are facing the same problem so the great general interest of all asylum seekers is involved.

Analysis and disposition

8.  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. 

9.  The applicant’s complaint against the Director and the Board was not raised in the leave application before the Court of First Instance or in the application before the Court of Appeal.  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. 

10.  In any event, the applicant’s grounds and submissions lack particulars, elaboration and evidence in support.  In particular, she has not pointed out any error of the Court of Appeal’s decision in dismissing her application.  Besides, she failed to identify any question of great general or public importance which she alleged all asylum seekers are facing.  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b). 

11.  For the above reasons, we refuse to give leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 1 August 2022.