RE SHAPLA MST

CACV 442/2019

[2020] HKCA 785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 442 OF 2019

(ON APPEAL FROM HCAL NO 2584 OF 2018)

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J U D G M E N T

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Hon Pang JA (giving the Judgment of the Court) :

1.  By a judgment dated 3 June 2020 ([2020] HKCA 417), this Court (Yeung VP, Chu and Pang JJA) dismissed the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 19 September 2019 in HCAL 2584/2018 refusing to grant leave to her to apply for judicial review.  The applicant sought to review the decision of the Torture Claims Appeal Board (“Board”) given on 12 November 2018 dismissing her petition/appeal from the decision of the Director of Immigration (“Director”) given on 14 February 2018 rejecting her non-refoulement claim.

2.  By a notice of motion dated 8 June 2020, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that :

“    - The claims that the Judgment has made stated is no substance in the grounds of the application is not true.

- On the strength of the grounds not made complain about the poor performance of his duty lawyer is due to fearing he will be picked out for misappropriating by the adjudicator.

- The applicant gently did not have enough time to address the bundle

Rest of the grounds I will submit as soon as possible.”

3.  In compliance with the directions made by the Registrar of Civil Appeals on 10 June 2020 and 29 July 2020, the applicant lodged her written submissions on 11 August 2020 in which she set out the background of her case and cited some articles or provisions of the International Covenant on Civil and Political Rights, the Hong Kong Bill of Rights Ordinance (Cap.383), the Basic Law, the United Nations Convention against Torture and some cases relating to torture claim.  She further advanced two grounds which we reproduce word for word below :

“1^st GROUND :

(i)  It must be borne in mind that “the life and limb are in jeopardy and the applicant’s fundamental human right not to be subjected to torture is involved”, which is why high standards of fairness are required : ST v Director of Immigration [2014] 4 HKLRD 277.

(ii)  The decision has the effect of finally disposing of the applicant’s torture claim and making him liable to be removed.  This entailed real and significant implications for the applicant’s substantive right not to be subject to torture and his right to non-refoulement protection.  In other words, the decision has a significant effect on the applicant’s torture claim.

(iii)  “High standards of fairness” are required in determination of a torture claim on the part of the decision-maker.

(iv)  In Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, Li CJ stated that -

“ …… [paragraphs 43, 44, 45 and 51 of the judgment]”

(v)  Alternatively, insofar as the court considers that it was open to the Board to take into consideration the substantive merits of the applicant’s appeal.  For example:

(1)  The applicant’s appeal is a rehearing, and is not the same as an ordinary appeal in civil litigation.  The Board erred in approaching the matter by simply trying to see whether he could “find fault with the decision of the Immigration officer”.  The Adjudicator failed to scrutinize the Director of Immigration and it is a general practice of the Board not to question or find fault with the decision of the Director of Immigration.

(2)  As part of the rehearing, the Board ought to have considered matters such as the country conditions of the applicant’s county of origin.  The need to consider country conditions was made clear by the Court of Final Appeal in Secretary for Security v Prabakar (2004) 7 HKCFAR 187. Yet, the Board did not do so.

2^nd GROUND :

(i)  At common law, there are minimum standards of procedural fairness required in the decision-making process.  The decision-maker is under a duty to act fairly.  See The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 at p.383D; Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 at p.253C-D.

(ii)  In Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217, Hartmann J (as he then was) at [134] described this duty as a “constitutional duty”.             ”

4.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

5.  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. 

6.  We now turn to the grounds raised in the notice of motion.  Regarding the applicant’s disagreement with our findings that her grounds of appeal were of no substance, it is unarguable.  The applicant raised three grounds of appeal before us and as duly explained at [10] to [12] of our judgment, we found all the grounds as general and bare assertions without elaborations and none of them was validly raised nor established.  Her complaint about the Duty Lawyer Service was a new argument and we will not entertain any new point that was not canvassed in the lower court hearing nor it is the general practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal, see Nupur Mst v Director of Immigration [2018] HKCA 525 at [14].  Lastly, the applicant’s complaint about the hearing bundle was canvassed and duly rejected by the Judge at the lower court hearing.   In our judgment, nothing mentioned in the notice of motion can be construed as valid grounds of appeal to the Court of Final Appeal.

7.  Regarding the contents and grounds set out in the written submissions, we found them general and non-specific and nothing mentioned therein raised any discernible or arguable ground for disturbing our judgment.    

8.  For the reasons that we gave in our judgment of 3 June 2020, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and her written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

9.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss her notice of motion.