Siti Sarmiati v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

CAMP 180/2020

[2021] HKCA 565

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 180 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1148 OF 2017)

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

Date of Written Submission: 7 April 2021

Date of Judgment: 28 April 2021

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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 applicant’s Notice of Motion for leave to appeal out of time to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chu JA) handed down on 10 March 2021 ([2021] HKCA 247). The Court of Appeal dismissed her application for extension of time to appeal against the decision of Deputy High Court Judge Josiah Lam on 5 October 2018 refusing to grant leave to apply for judicial review concerning her non-refoulement claim ([2018] HKCFI 2134).

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 23 March 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged her written submissions on 7 April 2021.  Having considered her submissions, we consider it appropriate to determine this application on paper.

3.The applicant is a national of Indonesia.  She came to Hong Kong to work as a domestic helper in 2005.  She last entered Hong Kong on 15 July 2011 and her employment contract was terminated in January 2012.  She overstayed and was arrested on 7 February 2013.  She raised a torture claim on 6 March 2013.  She also lodged a non‑refoulement claim which was received by the Director on 11 February 2014.  Her claim was made on the basis that her life would be endangered by her husband and his loan shark.

4.She took out a summons in the court below to seek an extension of time to appeal against the decision of DHCJ Lam.  Her application was late for more than 19 months.  It was refused by DHCJ Bruno Chan on 17 September 2020. 

5.The applicant renewed her application to the Court of Appeal for extension of time to appeal on 28 September 2020.  The application was dismissed by the Court of Appeal on 10 March 2021 as the applicant failed to show any prospect of success in her intended appeal. 

Grounds of appeal

6.In the Notice of Motion filed on 22 March 2021, the applicant stated the following as her grounds of appeal:

(1)  she was late in filing the notice of appeal because of her ignorance and the fact that she was waiting for her dependent visa;

(2)  the court did not consider her reasons for the delay in filing the appeal.

7.In her written submissions, she put forward further contentions as follows:

(1)  the Director and the Board failed to comply with their duty to make sufficient inquiries into the country of origin conditions of her claim and adopted a passive approach in contravention of the high standards of fairness;

(2)  she thought her visa application will be approved soon so she did not make the appeal on time.

Analysis and disposition

8.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.

9.The applicant’s grounds are unmeritorious.  In particular, both the court below and the Court of Appeal have considered her explanation for the delay and found that the excessive delay was inexcusable.  Her complaints against the Director and the Board are just bare assertions without particulars or evidence in support.  The applicant failed to demonstrate any reasonably arguable basis that the Court of Appeal was wrong in dismissing her application.

10.Moreover, the applicant has 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.For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 22 March 2021.

The Applicant (Appellant), acting in person