Zoraydah and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 589 /2019

[2020] HKCA 574

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 589 OF 2019

(ON APPEAL FROM HCAL NO 663 OF 2019)

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Before: Hon Kwan VP, Cheung JA and Chu JA in Court

Date of Written Submission: 8 July 2020

Date of Judgment: 17 July 2020

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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 applicants’ Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Cheung JA) handed down on 9 June 2020 ([2020] HKCA 442). The Court of Appeal dismissed their appeal against the decision of Deputy High Court Judge K W Lung on 6 December 2019 ([2019] HKCFI 2960) 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 24 June 2020 that the Notice of Motion shall be determined on paper only without an oral hearing.  The 1^st applicant lodged her written submission on 8 July 2020^[1]. Having considered her submission, we think it appropriate to determine this application on paper.

3.The applicants’ torture claim was refused by the Director of Immigration (“the Director”) on 26 March 2012 and their appeal was rejected by the Torture Claims Appeal Board(“the Board”) on 23 April 2012. 

4.Their non-refoulement claim was rejected by the Director by a Notice of Decision dated 30 April 2018.  Their appeal against the Director’s decision was dismissed by the Board on 10 January 2019.

5.They filed a Form 86 on 8 March 2019 to seek leave to apply for judicial review against the decision of the Board.  Their application was refused by Deputy High Court Judge K W Lung on 6 December 2019.

6.The applicants filed a Notice of Appeal against the decision of the judge on 18 December 2019.  The appeal was scheduled to be heard by the Court of Appeal on 27 May 2020.  The hearing was vacated as the applicants failed to lodge their skeleton argument by the extended deadline prescribed under the direction of Kwan VP on 17 April 2020.  The appeal was dealt with on paper.  It was dismissed by the Court of Appeal on 9 June 2020.  The applicants filed a Notice of Motion on 22 June 2020 for leave to appeal to the Court of Final Appeal.

7.The applicants stated the following grounds of appeal in the Notice of Motion:

(1)  They did not receive the letter from Court dated 7 January 2020^[2] so they failed to lodge skeleton argument before 8 May 2020. 

(2)  The judges did not consider the fear of the applicants and their life would be in danger upon refoulement.

8.The following submissions were made in the written submission lodged on 8 July 2020:

(1)  The Board and the Director failed to comply with their duty to make sufficient inquiries into the country of origin conditions of their claim and adopted a passive approach in contravention of the high standards of fairness, namely, the discharging of the burden of proof.

(2)  The Board and the Director failed to take into account and/or give proper weight to relevant considerations and materials and hence their decisions are illegal.  In particular, both of them failed to give due regard to:

(a)  the fact that the 1^st applicant received death threats from her enemies and they are still looking for her to take revenge against her so her life is dangerous;

(b)  the fact that their claim is based on true story.  Decision maker did not observe their fear well.  Even assuming their risk may be private and arose out of personal dispute, their life would be too risky if they return to their country.

(3)  Their claim is not a private and personal matter but the decision maker did not observe their fear properly.

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.It is the duty of litigants to give the court an address to which correspondence or notice dispatched by the court can come to their attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address provided would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at [15]). 

11.Leaving that aside, the applicants’ grounds of appeal and submission are not supported by evidence and 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).

12.We therefore dismiss the application for leave to appeal to the Court of Final Appeal.

The 1^st to 3^rd Applicants, acting in person