MUTMAINAH SITI ALIAS SITI MUTMAINAH v. GELEV FILIP, Esq

CACV 428/2019

[2020] HKCA 489

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 428 OF 2019

(ON APPEAL FROM HCAL 719/2018)

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J U D G M E N T

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Hon Marlene Ng J (giving judgment of the court):

1.  On 23 April 2020, this court (Lam VP and Marlene Ng J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“Judge”) given on 4 September 2019 refusing leave to the applicant to apply for judicial review.  The applicant sought to review the decision of the Torture Claims Appeal Board (“Board”) dismissing her petition/appeal from the decision of the Director of Immigration rejecting her non-refoulement claim.

2.  The facts and issues in the appeal as well as this court’s reasons for dismissing it are set out in our judgment.[1]  We shall not repeat them here.

3.  On 14 May 2020, the applicant filed a Notice of Motion for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“On 23 April 2020 the judges from the High Court dismissed my apply for leave for judicial review. It is one kind of thunder fall on my head. I am not agree with this decision. I want to go to the Court of Final Appeal. Please send my case to the Court of Final Appeal.”

4.  The applicant lodged written submissions in support of the application on 28 May 2020.  In the written submissions, the applicant submitted that she had no option but to flee from Indonesia to Hong Kong to work as a domestic helper because she had some big problem with her enemy who was powerful and influential, and who was “impowered by political and social group”.  She further submitted that she was tensed and troubled by her problem, and could not pay attention to her work, so her employer terminated her employment.  She claimed to have fallen into despair, and to have stayed in Hong Kong as an asylum seeker with the help of refugee union.  The applicant further claimed she did not to know English or the law, so she failed to describe her problem to the immigration officer of the Immigration Department and/or the adjudicator of the Board.  Even though she had the assistance of an interpreter and a lawyer from the Duty Lawyer Service, she had no faith in them as they were paid by the Immigration Department to work for her, and she thought they cheated her.  The applicant submitted she could not return to Indonesia as she would be killed, and asked for leave to appeal to the Court of Final Appeal.

5.  Pursuant to the directions made by the Registrar of Civil Appeals on 22 May 2020, the Notice of Motion shall be determined on paper only without an oral hearing unless the court otherwise directs.  Having considered the applicant’s Notice of Motion and written submissions, we see no reason to depart from the usual practice of determination of this kind of application on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed/lodged.

6.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance Cap 484 provides that leave to appeal to the Court of Final Appeal shall be granted at the discretion of the Court of Appeal or the Court of Final Appeal if the question in the appeal involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal. The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine.  Nor is any such question apparent to us from the matters she has raised.

7.  The grounds stated in the Notice of Motion are basically a repetition of the grounds of appeal relied on by the applicant in her appeal to this court.  In her written submissions, the applicant also repeated the contents of her written submissions lodged on 13 December 2019 in support of her appeal to this court, which have been summarised in paragraph 11 of our judgment.  Such grounds and arguments by the applicant have already been dealt with by this court in paragraphs 15-19 of our judgment.  Thus, the assertion by the applicant that it is unsafe for her to return to Indonesia is not a valid ground of appeal.

8.  As for the grounds raised in the applicant’s written submissions based on (a) her inability to describe her case to the immigration officer of the Immigration Department and/or the adjudicator of the Board because she did not know English or the law, (b) her lack of faith in the interpreter and lawyer from the Duty Lawyer Service provided to her on the basis that they were paid for by the Immigration Department, and/or (c) her thought that such interpreter and lawyer cheated her, they were a regurgitation of the grounds relied on by the applicant in her leave application,[2] and the Judge adequately dealt with such grounds in his decision. [3] The applicant did not pursue these points on appeal.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it; [4] nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued before the Court of Appeal. [5]

9.  In our view, the grounds raised by the applicant are not reasonably arguable before the Court of Final Appeal.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b).

10.  For these reasons, the Notice of Motion dated 14 May 2020 is dismissed.