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

CAMP 88/2022, [2023] HKCA 525

On appeal from [2021] HKCFI 3737

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 88 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 503 OF 2019)

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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 Cheung JA) handed down on 3 November 2022 ([2022] HKCA 1645). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 28 December 2021 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 that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged her written submissions on 22 November 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 first arrived in Hong Kong to work as a domestic helper in 2002 and went back to Indonesia after finishing her contract. She returned to Hong Kong to work as a domestic helper on 3 January 2005 and her employment contract was prematurely terminated on 5 June 2005. She subsequently overstayed and was arrested by the police on 13 July 2010. She claimed non-refoulement protection on the basis that she would be harmed or killed by a creditor who had lent money to her family and by the fundamentalist groups in her area as she had premarital sex which is prohibited by Muslims.

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 3 March 2022[2].

5.  On 12 April 2022, the applicant filed a renewed application for leave to appeal out of time. The application was dismissed by the Court of Appeal on 3 November 2022 as she failed to show any prospect of success in her intended appeal.

Grounds of appeal

6.  The applicant stated the following grounds of appeal in the Notice of Motion:

(1)  she disagrees with the decisions made by the Director of Immigration and the Board;

(2)  the Board has significantly relied on source of news which is not officially recognized or is simply hearsay.

7.  In her written submissions, she further contended that:

(1)  Whilst it may be true that interpretation service does not need to be made available at all times to a non-refoulement claimant, it does not mean that the basic right of a litigant to understand the contents of the process or the judgment can or should be deprived of.

(2)  In her case, no assistance has been given to her with regard to her BOR 2 risk claim and the authorities have failed to acknowledge this.

(3)  The lack of sound judgment and fairness throughout the non-refoulement claim process is appalling and should be investigated. Such misbehaviour should be corrected.

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.  In the present application, the applicant does not have any reasonably arguable ground to show that the Court of Appeal’s decision is unsound or unfair. In particular, the Court of Appeal had given detailed reasoning in the judgment of 3 November 2022 and the applicant has not identified any error or unfairness of the decision. She also failed to demonstrate 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).

10.  We therefore refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 8 November 2022.