Case Document

100%Judiciary

CACV 207/2018

[2019] HKCA 53

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 207 OF 2018

(ON APPEAL FROM HCAL 988/2017)

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RE:

TANCHANGYA NABONITA

Applicant

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Before: Hon Barma JA, McWalters JA and Anthony Chan J in Court

Date of Handing Down Judgment: 1 February 2019

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J U D G M E N T

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Hon Anthony Chan J (giving the Judgment of the Court):

1.On 30 October 2018, this court (Barma JA and Anthony Chan J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 1 June 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decisions of the Torture Claims Appeal Board (“Board”) dismissing her appeal from the decisions of the Director of Immigration rejecting her non-refoulement claim.

2.The facts and issues in the appeal, as well as the court’s reasons for dismissing it, were set out in our judgment (“Judgment”)[1]. We will not repeat them here.

3.The applicant subsequently applied, by a Notice of Motion dated 31 October 2018, for leave to appeal to the Court of Final Appeal. The applicant stated in her Notice of Motion that :

“I came from Bangladesh from a village. Shetelor Bengali members want to kill me. I cannot return any how to my country, but all my claim cencel (sic) from every where. Actually I have no documents which one can proved my problem, so I want to say if Hong Kong Government send me Bangladesh then Bengali Shetelor will kill me then I can prove that I had problem in my country. So please save me any how.”

4.On 6 November 2018, directions were given to the applicant by the Registrar of Civil Appeals (“Directions”) in respect of, inter alia¸ the lodging of written submissions in support of the Notice of Motion which should not seek to re-argue matters already canvassed, the identification of questions that would meet the criteria of s.22 of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“Ordinance”) and the determination of the Notice of Motion on paper.

5.The applicant had failed to comply with the Directions on the lodging of written submissions on or before 14 November 2018. Under the Directions, the applicant was debarred from lodging any further written submissions and the Notice of Motion was to be dealt with on the basis of the materials already filed before the court.

6.On 21 December 2018, 2 sets of written submissions were lodged by the applicant without the leave of the court. There was no explanation for the lateness. Apart from being out of time, the submissions did not identify any question that would meet the criteria of s.22 of the Ordinance. Further, they sought to re-argue the applicant’s case which was previously ventilated before this court. We are unable to see how these submissions assist the applicant in the present application.

7.We see no reason to depart from the Directions that the Notice of Motion be determined on paper and on the basis of the representations made in that document. We did so accordingly.

8.The matters stated by the applicant in the Notice of Motion do not constitute any valid ground for granting leave to appeal to 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, as required by s.22(1)(b) of the Ordinance. Nor is any such question apparent to us from the matters she has raised in the Notice of Motion. The bare assertion by the applicant that it is unsafe for her to return is not a valid ground for the present purpose. In any event, the Board found against the applicant on the credibility of her case, the decisions of the Board were subjected to anxious scrutiny by the Judge and this court was unable to find any merit in the appeal against the Judge’s decision[2].

9.Further, we do not see any basis for granting leave on the “otherwise” limb under s.22(1)(b) of the Ordinance.

10.For these reasons, the Notice of Motion dated 31 October 2018 is dismissed.