BARIYAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 455/2022, [2023] HKCA 1216

On appeal from [2021] HKCFI 1865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 455 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2918 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 handed down on 4 April 2023 ([2023] HKCA 489). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge To dated 28 June 2021 dismissing the application for extension of time to apply for leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning the applicant’s non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged her written submissions on 5 May 2023. 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 first entered Hong Kong in 2002 to be employed as a foreign domestic helper. She last arrived in Hong Kong on 24 May 2011. Her employment contract was prematurely terminated on 11 September 2011 and she subsequently overstayed. She raised her non-refoulement claim on the basis that her ex-husband threatened to kill her.

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 30 September 2022[1].

5.  On 1 November 2022, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal. The application was dismissed by the Court of Appeal on 4 April 2023 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 24 April 2023, the applicant only stated that she wants to go to the Court of Final Appeal without stating any specific grounds of appeal.

7.  In her written submissions, she stated that there is no reason to reject her claim and she wants to go to the Court of Final Appeal not only for her problem but also for “all asylum problem”.

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 has not pointed out any mistakes of the judgment of the Court of Appeal. Although she submitted that she wants to go to the Court of Final Appeal for all asylum problems, she has not spelled out the problems nor has she identified 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 grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 24 April 2023.