DAS SANTNA RANI v. TORTURE CLAIMS APPEAL BOARD

CAMP 502/2021

[2022] HKCA 1384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 502 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2308 OF 2018)

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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 Yuen JA) handed down on 8 April 2022 ([2022] HKCA 486). The Court of Appeal refused to grant leave to appeal out of time against the decision of Deputy High Court Judge To dated 11 May 2021 refusing to grant leave for the applicant to apply for judicial review concerning her non-refoulement claim[1].

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 1 June 2022 that the applicant shall lodge written submissions on or before 15 June 2022. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Bangladesh. She came to Hong Kong to take up employment as a domestic helper on 31 December 2013. Her employment was prematurely terminated on 29 March 2014 and she subsequently overstayed. On 9 September 2015, she was arrested by the police. She lodged a non-refoulement claim on 12 September 2015 on the basis that if she were to return to Bangladesh, she would be harmed or killed by the Awami League for refusing to join them.

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 Deputy High Court Judge Suffiad on 22 October 2021[2].

5.  On 5 November 2021, the applicant filed a renewed application for leave to appeal out of time. 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.  The applicant stated her grounds of appeal in the Notice of Motion filed on 1 June 2022 which may be summarised as follows:

(1)  The decision maker did not consider her summons properly and the decision is unfair.

(2)  If the applicant returns to her home country, she will be killed by her enemy.

Analysis and disposition

7.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

8.  Section 22(1)(b) of the Ordinance 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 was late for more than 3 weeks in filing her Notice of Motion. She did not provide any explanation for the delay but only reiterated in her affirmation that she has severe problem in her home country and that she will be killed if she returns. These bare assertions cannot justify her delay and cannot constitute good grounds for the court to grant extension of time for the applicant to file her Notice of Motion.

10.  In any event, the Court of Appeal has sufficiently dealt with her grounds in the decision dated 8 April 2022. The applicant failed to demonstrate that the Court of Appeal was wrong in dismissing her application. Moreover, 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.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 1 June 2022.