Santi Diana Sari v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

CAMP 179 /2020

[2021] HKCA 614

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 179 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 141 OF 2018)

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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: 30 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 to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chu JA) handed down on 12 March 2021 ([2021] HKCA 277). The Court of Appeal dismissed her application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan on 14 September 2018 ([2018] HKCFI 2058) refusing to grant leave to apply for judicial review concerning her non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 30 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 read her submissions, we consider it appropriate to determine this application on paper.

3.The applicant is a national of Indonesia.  She last arrived in Hong Kong on 29 November 2014 with permission to work as a foreign domestic helper.  She overstayed after her employment contract was prematurely terminated and was arrested by the police on 6 August 2015.  She lodged a non-refoulement claim on 31 August 2015 on the basis that her life would be endangered by her father and his creditor if she returns to Indonesia.

4.The applicant took out a summons in the court below to seek an extension of time to appeal against the decision of the judge.  Her application was late for about 20 months.  It was refused by the judge on 16 September 2020.

5.She renewed her application to the Court of Appeal for extension of time to appeal on 28 September 2020.  Her application was dismissed by the Court of Appeal on 12 March 2021 as she failed to show any prospect of success in her intended appeal.

Grounds of appeal

6.The applicant stated the following grounds of appeal in the Notice of Motion filed on 25 March 2021:

(1)     She was not aware of the appeal.  She is an ignorant person and did not have a proper understanding so she was late in filing the appeal.

(2)     She would be in danger upon refoulement to her country.

7.In her written submissions, she contended that the Director of Immigration and the Torture Claims Appeal Board failed to take into account and/or give proper weight to the relevant considerations and materials when assessing her non-refoulement claim and hence their decisions are illegal.

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 of appeal are not reasonably arguable.  In particular, her complaint raised against the Director and the Board in the present application is just bare assertion without particulars or evidence in support.  She has not demonstrated that the Court of Appeal was wrong in dismissing her application and 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).

10.We therefore refuse leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 25 March 2021.

The Applicant, acting in person