TRI WIDAYATI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CAMP 242 /2021

[2022] HKCA 1153

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 242 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 213 OF 2021)

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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 Barma JA) handed down on 8 April 2022 ([2022] HKCA 484). The Court of Appeal dismissed the applicant’s summons for leave to advance a new ground of appeal and for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 25 March 2021 refusing to grant extension of time for the applicant to apply for leave to seek 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 26 April 2022 that the Notice of Motion shall be determined on paper without an oral hearing.  The applicant lodged her written submissions on 10 May 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 Indonesia.  She came to Hong Kong to work as a foreign domestic helper in 2004.  She did not depart after her last employment contract was terminated on 1 March 2015.  She subsequently overstayed and was arrested by the police on 22 July 2015.  She raised a non-refoulement claim on 7 August 2015 on the basis that she will be harmed or killed by her father’s creditor because she could not repay her father’s debt and refused to marry the creditor.

4.  She took out a summons in the court below to seek an extension of time to appeal against the decision of the judge.  Her application was late for 11 days.  It was refused by the judge on 29 June 2021^[1]. 

5.  On 6 July 2021, the applicant filed a renewed application for extension of time to appeal and for leave to advance a new ground of appeal with the Court of Appeal.  The application was dismissed by the Court of Appeal on 8 April 2022 as the applicant failed to show any prospect of success in her intended appeal.

Grounds of appeal

6.  In the Notice of Motion filed on 26 April 2022, the applicant stated the following grounds of appeal:

(1)  The judge was wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director of Immigration (“the Director”).

(2)  The judge was wrong as a matter of law for not applying the principle of irrationality to the decision made by the Director refusing her application for judicial review.

(3)  There is some error in law in the decision. The decision maker just relied on the Country of Origin information (“COI”) and previous facts which favour the rejection of the applicant’s claim. 

(4)  The decision maker has not considered all aspects that are relevant to her case.  This is an error in law and is of great general or public importance.

(5)  The actual situation is different from the COI.  The immigration officer and the court ignored the evidence of violence towards minorities, searching for unrealistic silver lining.

(6)  The judge did not apply the law properly and there is procedural unfairness.

(7)  Her life is in danger in her country.  She will be killed or harmed if she returns to her country.

7.  The applicant’s further contentions in her written submissions may be summarised as follows:

(1)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker.

(2)  The Board acted in a procedurally unfair manner without properly assessing her credibility.

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 grounds and submissions in the present application are just bare assertions without particulars or evidence in support.  She failed to identify any particular mistakes and/or procedural unfairness in the Court of Appeal’s decision.  Furthermore, she has failed to identify what aspects of this case were not considered by the court and/or 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).

10.  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 26 April 2022.