RE MOMOTAZ

CACV 63/2019

[2019] HKCA 868

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 63OF 2019

(ON APPEAL FROM HCAL 1097/2018)

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.  Before the court is a notice of motion filed on 27 June 2019 by the abovenamed applicant, applying for leave to appeal to the Court of Final Appeal (“CFA”) against the judgment dated 13 June 2019[1] (“Judgment”) of this court (Yuen JA and Lisa Wong J), dismissing the applicant’s appeal from a decision dated 31 January 2019[2] by Deputy High Court Judge K W Lung (“Judge”), refusing her leave to apply for judicial review of the decision dated 13 June 2018 of the Torture Claims Appeal Board (“Board”).

Paper disposal appropriate

2.  Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing.  We agree with the Registrar that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.  By virtue of s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA, from any judgment of the CA in any civil cause or matter, whether final or interlocutory, if, in the opinion of the CA or the CFA, 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 CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

4.  In seeking leave to appeal to the CFA, the applicant first asserted in the notice of motion (sic):

“AFTER REFUSED MY NONREFOULEMENT CIAIM FROM IMMIGRATION AND TCAB I CAME TO THE HIGH COURT FOR J.R, MY J.R IS ALSO REFUSED. I APPLIED TO COURT OF APPEAL. UNFORTUNATE MY COURT OF APPEAL TOO REFUSED. I AM NOT SATISFIED FOR THE RESULT OF COURT OF APPEAL. I WANT TO GO TO COURT OF FINAL APPEAL FOR CORRECT JUSTICE.”

5.  Second, the written submission lodged by the applicant on 11 July 2019 read as follows (sic):

“I AM A GIRL FROM BANGLADESH. MY MOTHER LANGUAGE IS BENGALI. MY FULL NAME IS MOMOTAZ. I HAVE POLITICAL PROBLEM ANY MY ENEMY WANT TO KILL ME. SO I CAME HONG KONG AND APPLIED FOR NONREFOULEMENT PROTECTION.

ONE OF A OFFICER ON BEHALF OF IMMIGRATION DIRECTOR SCREEN MY CLAIM.  BUT HE HAD NO PRACTICAL EXPERIENCE ABOUT BANGLADESH.  IF HE SCREEN MY CLAIM HE MUST HAVE TO VISIT BANGLADESH.  HE MUST INVESTIGATE IN BANGLADESH.   MAY BE I TOLD LIE.  JUST ONLY LISTEN MY SPEECH & NOBODY CANNOT REACH THE REAL FACT.  AFTER REFUSED MY CLAIM I WENT TO THE TORTURE CLAIM APPEAL BOARD.  ADJUDICATOR OF TORTURE CLAIMS APPEAL BOARD TOOK MY ORAL HEARING. HE ALSO NOT PROPERLY INVESTIGATE MY CLAIM.  HE JUST ASKED SOME QUESTION.  AFTER THAT HE GAVE DECISION.  HOW FUNY.  IF THIS SYSTEM IS PERFECT ALLOVER THE WORLD SHOULD FOLLOW HONG KONG SCREEN SYSTEEM.

FOR BETTER RESULT I CAME TO THE HIGH COURT FOR JUDICIAL REVIEW.  BUT COURT DO NOT WANT TO LISTEN MY PROBLEM IN MY COUNTRY. HE ASKED ME TO TELL THE LEGAL ERROR.  IF TOTAL SYSTEM HAVE FALT NO NEED TO POINT SMALL ERROR. BUT THE HONOURABLES JUSTICE DID NOT LISTEN MY SPEECH. I MEAN THEY NOT CONSIDER IT.  AS A RESULT THE HIGH COURT REFUSED MY JUDICIL REVIEW. THE COURT OF APPEAL ALSO REFUSED MY APPEAL. I THINK THE COURT OF FINAL APPEAL WILL CONSIDER MY CLAIM.  AND I AM NOT SATISFY THE PREVIOUS ORDER.  FOR THE BEST JUDGMENT I WANT TO GO TO THE COURT OF FINAL APPEAL.  I WISH I WILL GET CORRECT ORDER FROM THERE.”

Discussion

6.  The applicant has not by the aforesaid notice of motion or written submission raised any issue for determination by the CFA, whether of great, general or public importance or otherwise.

7.  Nor do we see any basis to grant leave under the “or otherwise” limb.

(1)   To recap, the subject matter of the applicant’s intended judicial review application is the Board’s refusal to re-open her appeal (“Board’s Decision”) against a notice of decision dated 14 August 2017 (“Director’s Decision”) by the Director of Immigration (“Director”) in respect of her non-refoulement claim after she had withdrawn the appeal by letter dated 18 May 2018 (“Withdrawal”).

(2)   In dismissing the applicant’s appeal against the Judge’s refusal of leave for judicial review of the Board’s Decision, we followed the judgments of this court in Re Ali Usman, CACV 70/2018, [2018] HKCA 955 (Lam VP and Barma JA)[3] and Re Das Purnima Rani, CACV 85/2018, [2019] HKCA 669 (Yuen JA and Lisa Wong J) that once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal; and that a claimant in such a situation can only make a fresh non-refoulement claim under s 37ZO(2) of the Immigration Ordinance (Cap 115) if he/she can fulfil the requirements in sub-ss (a) and (b) thereunder.

(3)   As noted in the Judgment, at [13], [14] and [22], the Withdrawal was made by the applicant voluntarily and deliberately, based on the information she then had.  She did not in her application to the Board to re-open her appeal against the Director’s Decision or in her application for leave for judicial review of the Board’s Decision seek to contest the validity of the Withdrawal or identify or suggest any matter that might invalidate or vitiate the Withdrawal.

(4)   The applicant has not in her aforesaid notice of motion or written submission engaged the reasons we set out in the Judgment for dismissing her appeal against the Judge’s refusal of leave for judicial review of the Board’s Decision at all.

(5)   The bare complaint of dissatisfaction with the decisions made by the Director, the Board, the Judge and the CA and/or expression of expectation of a better outcome in the CFA do not constitute grounds of appeal, properly so called.

(6)   The proposed appeal to the CFA is utterly devoid of merit.

8.  Neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met.  Accordingly, we dismiss the notice of motion.