Cordoval Myrna Beniasen and Another v. Torture Claims Appeal Board and Another

CACV 486/2020

[2022] HKCA 410

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 486 OF 2020

(ON APPEAL FROM HCAL NO 265 OF 2018)

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Before:  Hon Kwan VP, Barma JA and Lisa Wong J in Court

Date of Judgment:  25 March 2022

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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 1^st 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, Barma JA and Lisa Wong J) handed down on 29 September 2021 ([2021] HKCA 1426). The Court of Appeal rejected her appeal against the decision of Deputy High Court Judge Bruno Chan dated 23 July 2020 ([2020] HKCFI 1633) refusing to grant extension of time for the 1^st applicant to apply for leave to seek 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 18 October 2021 that the 1^st applicant shall lodge written submissions on or before 1 November 2021. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The 1^st applicant did not lodge written submissions as directed. Having considered the papers of this case, we think it appropriate to determine this application on paper and proceed to do so.

3.The 1^st applicant is a national of the Philippines. She last entered Hong Kong on 11 March 2009 as a domestic foreign helper. On 17 June 2020, her employment contract was terminated. She subsequently overstayed. She initially made a torture claim, claiming that she feared she would be killed by creditors if she were to return to the Philippines. The torture claim was rejected by an immigration officer on 25 May 2012. She did not challenge this decision but, in September 2013, sought non-refoulement protection on the same basis. She later submitted a non-refoulement claim on behalf of her daughter, the 2^nd applicant herein. Their non-refoulement claims were rejected by the Director of Immigration (“the Director”) on 12 March 2015 and 23 December 2016. Their appeal was dismissed by the Torture Claims Appeal Board (“the Board”) on 12 July 2017.

4.The 1^st applicant filed a Form 86 out of time on 21 February 2018 to seek leave to apply for judicial review against the decision made by the Immigration Department on her non-refoulement claim on 12 July 2017. As the decision on 12 July 2017 is in fact the decision of the Board, DHCJ Bruno Chan treated the application as an application for extension of time to apply for judicial review of the decision of the Board on 12 July 2017 and an application for leave to apply for judicial review of that decision. Although the Form 86 was filed in the name of the 1^st applicant, somehow the 2^nd applicant also became an applicant to the application and the judge dealt with the application as being made by the 1^st and 2^nd applicants. The judge refused to grant extension of time for them to take out the application and dismissed the leave application on 23 July 2020. The applicants issued a summons seeking leave to appeal against the judge’s decision.

5.On 8 September 2020, the judge held that in view of the decision in H v Director of Immigration (2020) 23 HKCFAR 248, the applicants were entitled to appeal to the Court of Appeal as of right without leave. He gave them a 14-day extension to file their notice of appeal. The applicants filed a notice of appeal on 18 September 2020. On 11 March 2021, before the appeal was heard, the 1^st applicant issued a summons indicating an intention to withdraw the 2^nd applicant’s appeal as she is now a Hong Kong resident. After considering the relevant documentary evidence as well as submissions from the Director’s counsel and the 1^st applicant, the Court of Appeal was satisfied that the 2^nd applicant has established that she has the right of abode in Hong Kong under paragraph 2(e) of Schedule 1 to the Immigration Ordinance (Cap 115) and that it is proper to withdraw her appeal against the decision of DHCJ Bruno Chan on 23 July 2020. Therefore, the Court of Appeal granted leave to withdraw the 2^nd applicant’s appeal. The 1^st applicant’s appeal was dismissed by Court of Appeal on 29 September 2021.

6.The 1^st applicant filed a Notice of Motion on 18 October 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

7.In the Notice of Motion, the applicant stated as her ground of appeal that the Board disregarded her dangerous situation should she return to her home country.

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 1^st applicant’s ground of appeal in the present application has been sufficiently dealt with by the Court of First Instance as well as in the appeal before the Court of Appeal. She has not demonstrated that the Court of Appeal was wrong in dismissing her appeal. Besides, she 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).

10.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 18 October 2021.

The 1^st Applicant, acting in person