SRI-WAHYUNINGSIH v. TORTURE CLAIMS APPEAL BOARD

CAMP 209/2022, [2023] HKCA 631

On appeal from [2021] HKCFI 3421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 209 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 71 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 8 December 2022 ([2022] HKCA 1781). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 24 December 2021 dismissing the application for leave to seek judicial review against the decisions of Director of Immigration and the Torture Claims Appeal Board (“the Board”) concerning the applicant’s 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 28 December 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 arrived in Hong Kong on 1 December 2015 with permission to remain for employment as a foreign domestic helper. Her employment was terminated prematurely on 31 August 2016 and she subsequently overstayed. On 4 November 2016, she was arrested by the police. She lodged a non-refoulement claim on 21 November 2016 on the basis that she will be harmed or killed by her husband and her creditor.

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 16 June 2022[2].

5.  On 24 June 2022, the applicant filed a renewed application for extension of time to appeal. The application was dismissed by the Court of Appeal on 8 December 2022 as the applicant failed to show any prospect of success in her intended appeal.

6.  The applicant stated in the Notice of Motion filed on 12 December 2022 there is some error in the decision and her case has not been determined fairly.

7.  In her written submissions, she stated that no assistance has been given to her with regard to her BOR 2 risk claim and the authorities have failed to acknowledge as such. She further contended that the lack of sound judgment and fairness throughout the non-refoulement claim process is appalling and should not be tolerated.

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 has not identified the particular error or unfairness in the Court of Appeal’s decision and/or in the processing of her claim. Besides, her submissions pertaining to the lack of interpretation service in her BOR 2 risk claim is untrue as she had been assisted by interpreter in the interview before the immigration officer as well as in the appeal hearing before the Board.

10.  In addition, she 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.  We therefore refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 12 December 2022.