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

CAMP 385/2022, [2023] HKCA 1172

On appeal from [2022] HKCFI 1816

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 385 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1089 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 handed down on 15 March 2023 ([2023] HKCA 350). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 16 June 2022 dismissing the application 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 9 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 Bangladesh. She entered Hong Kong on 9 August 2014 to be employed as a foreign domestic helper but her employment contract was prematurely terminated on the date of arrival. She then overstayed and was subsequently arrested by the police on 9 September 2014. On 11 September 2014, the applicant raised a non-refoulement claim on the basis that she would be ill-treated or killed by members of the Awami League as her father was in the opposing political party.

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 11 August 2022[1].

5.  On 27 September 2022, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal. The application was dismissed on 15 March 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 26 April 2023, the applicant stated that she did not get justice so she wants to go to the Court of Final Appeal to get justice.

7.  In her written submissions, she reiterated the background and procedural history of her case. She also submitted that she wants to go to the Court of Final Appeal to speak for the interest of all asylum seekers.

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 2 weeks in filing the Notice of Motion but did not provide any explanation for the delay. In these circumstances, there is no good ground for the court to grant extension of time for her to file the Notice of Motion.

11.  In any event, the applicant does not have any valid grounds in the present application. Her allegation that she did not get justice is just a bare assertion without particulars or evidence in support. She failed to point out any mistakes in the judgment of the Court of Appeal 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).

12.  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 26 April 2023.