WIJI UTAMI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 142/2022

[2023] HKCA 354

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 142 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1842 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 Barma JA) handed down on 11 August 2022 ([2022] HKCA 1155). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 14 July 2020 refusing to grant leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement claim[1].

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 28 September 2022 that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged her written submissions on 12 October 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 on 19 August 2010. Her employment contract was prematurely terminated. Upon giving birth to her son on 14 November 2011, the applicant was arrested for overstaying. On 26 January 2015 and 2 February 2015, the applicant lodged her non-refoulement claim on the basis that if she is returned to Indonesia she would be harmed or killed by her husband and her father, as she has given birth to an illegitimate son in Hong Kong and she had got a loan borrowed under her name.

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 22 March 2021[2].

5.  On 6 May 2022, the applicant filed a renewed application for extension of time to appeal. The application was dismissed by the Court of Appeal on 11 August 2022 as the applicant failed to show any prospect of success in her intended appeal.

Grounds of appeal

6.  The applicant did not provide any specific grounds of appeal in the Notice of Motion filed on 28 September 2022.

7.  Her contentions in the written submissions may be summarised as follows:

(1)  There are many mistakes in processing her case.

(2)  The courts did not like her arguments and dismissed her application.

(3)  She wants to go to the Court of Final Appeal because the applicant and all her friends are facing the same problem.

Analysis and disposition

8.  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).

9.  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.

10.  The applicant was late for nearly 3 weeks in filing the Notice of Motion but she has not provided any explanation for the delay. Thus, there is no good ground for the court to grant extension of time to file the Notice of Motion.

11.  In any event, the applicant’s submissions are not supported by any particulars or evidence. In particular, she failed to demonstrate that the Court of Appeal was wrong in dismissing her application. Although she submitted that many asylum seekers are facing the same problem, she has not identified the problem. She failed to show there is 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).

12.  For these reasons, the Notice of Motion filed on 28 September 2022 for leave to appeal to the Court of Final Appeal is dismissed.