Laela Moshammad Runa v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 457/2021

[2022] HKCA 832

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 457 OF 2021

(ON APPEAL FROM HCAL NO 2314 OF 2020)

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Before:  Hon Kwan Ag CJHC and Yuen JA in Court

Date of Written Submission:  17 January 2022

Date of Judgment:  17 June 2022

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J U D G M E N T

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Hon Kwan Ag CJHC (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 Yuen JA) handed down on 24 December 2021 ([2021] HKCA 1923). The Court of Appeal rejected her appeal against the decision of Deputy High Court Judge P Li dated 28 September 2021 ([2021] HKCFI 2863) refusing to grant extension of time for her 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 5 January 2022 that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged her written submissions on 17 January 2022. Having considered her written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.The applicant is a national of Bangladesh. She last arrived in Hong Kong on 6 September 2014 as a foreign domestic helper. After her employment contract was prematurely terminated on 18 May 2015, she did not depart within the time limit and had overstayed. On 21 March 2016, she surrendered to the Immigration Department. She lodged her non-refoulement claim on 9 December 2016 on the basis that she would be harmed or killed by her husband because she refused to transfer the family asset to him and to join him in the Awami League.

4.She filed a Form 86 on 24 November 2020 to seek leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) out of time. On 1 April 2021, her application to withdraw her leave application was allowed by DHCJ P Li.

5.On 21 June 2021, the applicant wrote to the court requesting to reinstate her leave application. The reinstatement application was allowed by the judge. In respect of the leave application, the judge considered that the applicant failed to show she has a reasonable chance of success in her proposed judicial review and on 28 September 2021 refused to grant her extension of time to bring the leave application.

6.The applicant filed a Notice of Appeal on 30 September 2021. The appeal was dismissed by the Court of Appeal on 24 December 2021. She filed a Notice of Motion on 5 January 2022 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

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

(1)  She does not agree with the Court of Appeal’s decision on 24 December 2021 because the court only relied on simple hearsay.

(2)  The decision made her irrational and disappointed her.

(3)  The decision was unfair. The judge may not have analysed her appeal and did not scrutinize her problem in her home country.

8.The further contentions in her written submissions may be summarised as follows:

(1)  The judge was wrong as a matter of law for not applying the principle of irrationality to the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”).

(2)  The judge reviewed the matter lightly while high standards of fairness are required in the determination of torture claims.

(3)  The judge was wrong as a matter of law for not applying the principle of procedural unfairness to the decisions of the Director and the Board whereby they were required to give reasons to justify their decisions.

(4)  The applicant’s problems are very severe in her home country and she has submitted all the proofs of her torture claim but the judge did not apply greater care in considering the evidence adduced.

(5)  The judgment of the Court of First Instance was wrong. The judge did not scrutinize the matter for the extension of time to appeal.

(6)  The Board failed to give sufficient chance for the applicant to arrange for relevant evidence for her non-refoulement claim and her appeal.

(7)  The applicant will face hardship and will be killed by her enemy if she returns to her home country. The Board significantly relied on source of news which is not officially recognized or is simply hearsay.

(8)  The political situation in Bangladesh does not provide support to save her life. She cannot get help from the Bangladeshi police or authorities.

Analysis and disposition

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.The applicant’s grounds and submissions are not supported by evidence. In particular, she has not provided sufficient elaboration or evidence to show how the Court of Appeal’s decision failed to apply the relevant principles, and what hearsay evidence had the court relied on. She has failed to identify any unfairness in the decision and what issues in her appeal were not analysed by the court. While complaining that she was not given sufficient chance to arrange for relevant evidence previously, she has still failed to adduce evidence to the court in her appeal and her present application to substantiate her case. She still requests for further time to submit new documents to the court in her written submissions after more than five years since the lodging of her non-refoulement claim. In the absence of any explanation for the previous failure to obtain necessary evidence, it is not accepted that the applicant can obtain any credible evidence to support her application if further time is given.

11.Besides, 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).

12.For the above reasons, we refuse to exercise our discretion to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 5 January 2022.

The Applicant (Appellant), acting in person