Fitria-nur-hidayati v. Torture Claims Appeal Board and Another

CAMP 184/2021

[2022] HKCA 554

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 184 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 866 OF 2018)

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Before:  Hon Kwan VP and G Lam JA in Court

Date of Judgment:  29 April 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 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 G Lam JA) handed down on 10 December 2021 ([2021] HKCA 1839). The Court of Appeal dismissed her application for leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan on 14 September 2020 ([2020] HKCFI 2243) refusing to grant extension of time to seek 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 20 December 2021 that the applicant shall lodge written submissions on or before 3 January 2022. 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 applicant did not lodge any written submissions by the deadline. Having considered the papers of this case, we think 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 foreign domestic helper in January 2013. Her employment contract was prematurely terminated on 10 September 2013 and she subsequently overstayed. She surrendered to the Immigration Department on 14 August 2014 and lodged a non-refoulement claim on 4 September 2014. Her claim was made on the basis that she will be harmed or killed by her creditor for failing to repay her loan if she returns to Indonesia. Her daughter was born in Hong Kong on 25 October 2014 out of wedlock. Her daughter’s non-refoulement claim was raised on 23 December 2014 on the same basis with an additional claim of fear of harm from the applicant’s father for bringing shame to the family.

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 a week. It was refused by the judge on 18 March 2021[1].

5.The applicant renewed her application to the Court of Appeal for extension of time to appeal on 21 May 2021. The application was dismissed by the Court of Appeal on 10 December 2021 as she failed to show any prospect of success in her intended appeal.

Grounds of appeal

6.In the Notice of Motion filed on 20 December 2021, the applicant only stated that the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) rejected her claim and that the Court of First Instance and the Court of Appeal dismissed her applications. She did not put forward any specific grounds of appeal against the decision of the Court of Appeal.

Analysis and disposition

7.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.

8.In the present application, the applicant did not raise any grounds against the decision of the Court of Appeal. 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).

9.We therefore refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 20 December 2021.

The Applicant, acting in person