KAMALJEET KAUR AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 408/2019

[2020] HKCA 71

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 408 OF 2019

(ON APPEAL FROM HCAL NO 1692 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicants’ Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 28 November 2019 ([2019] HKCA 1325) dismissing their appeal against the decision of Deputy High Court Judge K W Lung on 27 August 2019 ([2019] HKCFI 2127) refusing leave to apply for judicial review concerning their non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 3 December 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  The 1^st applicant has lodged her written submission on 16 December 2019.  The 2^nd applicant is her infant son born in October 2016.  We think it is appropriate to determine this application on paper and will do so accordingly.

3.  By a Notice of Decision dated 26 September 2017, the Director of Immigration (“the Director”) rejected the applicants’ claim.

4.  The applicants appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s decision and their appeal was dismissed by the Board on 13 August 2018.

5.  The 1^st applicant filed a Form 86 on 21 August 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  Deputy High Court Judge K W Lung considered that the case of her son should be dealt with together and added him as the 2^nd applicant in the proceedings.  The judge dismissed their application on 27 August 2019.

6.  The applicants filed a Notice of Appeal against the decision of the judge on 5 September 2019.  The hearing of the appeal was vacated as the applicants failed to lodge skeleton argument by the time prescribed under the unless order made by the Registrar of Civil Appeals on 25 September 2019.  The appeal was dealt with on paper.  It was dismissed by the Court of Appeal on 28 November 2019.  The applicants filed a Notice of Motion on 2 December 2019 for leave to appeal to the Court of Final Appeal.

7.  In the Notice of Motion, the 1^st applicant stated as their grounds of appeal that she has problem in her own country in India and she cannot go back because danger is still there.  She requested the court to allow her to process her case further and give her some time to stay here so that she can solve her problem.

8.  In her written submissions[1], the 1^st applicant submitted that:

(1)  Her enemies are still looking for her and will kill her when they find her.  Even the police cannot protect her from them.  Her enemies have lots of manpower and strong political support which makes them so powerful.

(2)  Death and torture in police custody of innocent persons are common in her country and people who are responsible do this freely due to their power. Even if the police arrested the culprits sometimes, they could bribe the police and come out due to the corrupt system.

9.  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.

10.  The applicants’ grounds of appeal do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal.  They have not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing their appeal and they have 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 dismiss the application for leave to appeal to the Court of Final Appeal.