Mukhia Sujata v. Torture Claims Appeal Board / Non Refoulement Claims Petition Office

CACV 458/2019

[2020] HKCA 550

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 458 OF 2019

(ON APPEAL FROM HCAL 978/2018)

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BETWEEN

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Before:  Hon Yeung VP, Pang JA and Marlene Ng J in Court

Date of Written Submissions:  11 June 2020

Date of Judgment:  15 July 2020

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J U D G M E N T

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Hon Marlene Ng J (giving the Judgment of the Court):

1.On 27 May 2020, this court handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 20 September 2019 in HCAL978/2018 refusing leave to the applicant to apply for judicial review. The applicant sought to review the decision of the Director of Immigration (“the Director”) and the decision of the Torture Claims Appeal Board (“the Board”) that rejected his 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 1 June 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:

“Dear Sir/Madam,

I would like to inform the Honourable Court that there is some error of law in my decision. Decision maker just read the COL Information and my previous facts which were in favor while rejecting my claim. Actual life occur different situation then what is mentioned in COL Information. The Officer and court prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

4.The applicant lodged written submissions in support of the application on 11 June 2020.  In the written submissions, the applicant quoted passages from ST v Director of Immigration[2] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on the meaning of Wednesbury unreasonableness. The written submissions further referred to section 37ZT of the Immigration Ordinance Cap 115, and contended that in dealing with late filing of the notice of appeal, the Board may only take into account the reasons for delay stated in the application and accompanying evidence, and other relevant matters of fact within the Board’s knowledge. But the applicant did not further elaborate on how the section could assist her case.

5.Pursuant to the directions made by the Registrar of Civil Appeals on 3 June 2020, the Notice of Motion shall be determined on paper 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 determining this kind of application on 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) 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 he has raised.

7.It is clear from Re Moshsin Ali[3] that the decision of the Director is not susceptible to judicial review as the applicant has appealed/ petitioned to the Board from such decision.

8.The applicant’s written submissions mirrored her written submissions dated 11 March 2020 lodged for the purpose of the appeal against the decision of the Judge given on 25 September 2019. We have already considered the grounds raised in the applicant’s written submissions dated 11 March 2020 in [8] and [14] of our judgment. The grounds raised in the applicant’s Notice of Motion and written submissions dated 11 June 2020 are basically a repetition of the grounds of appeal relied on by the applicant in her appeal to this court.[4] Such grounds and arguments by the applicant have already been dealt with by this court in [10]-[14] of our judgment. 

9.The applicant has not demonstrated any reasonably arguable basis that this court was wrong in dismissing her appeal. The applicant did not identify any specific matter we have overlooked or any specific matter we relied on that was incorrect, and the assertion by the applicant that our judgment is biased, not fair or a formula approach does not identify any error and is not a viable ground of appeal.  As said, we have given reasons at [10]-[14] of our judgment for dismissing the grounds of appeal identified at [7]-[8] of our judgment.

10.In our view, the matters raised in the Notice of Motion do not raise any question of great general or public importance.  The applicant’s grounds for leave to appeal failed to engage with the reasons for dismissal of her appeal and are unarguable. We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b).

11.For these reasons, the Notice of Motion filed on 1 June 2020 is dismissed.

The applicant, acting in person