Re Akter Nargis

CACV 390/2021

[2022] HKCA 979

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 390 OF 2021

(ON APPEAL FROM HCAL 677 OF 2018)

________________________

________________________

Before:  Hon Cheung JA and Lisa Wong J in Court

Date of Notice of Motion:  21 December 2021

Date of Judgment:  30 June 2022

________________

J U D G M E N T

________________

Hon Lisa Wong J (giving the judgment of the court):

Application

1.Before the court is an application for leave to appeal to the Court of Final Appeal (“CFA”) against the judgment of this court (Cheung JA and Lisa Wong J) dated 30 November 2021 ([2021] HKCA 1767) (“Judgment”).

2.By the Judgment, we dismissed the applicants’ appeal from the decision of Deputy High Court Judge Bruno Chan given on 11 August 2021 ([2021] HKCFI 2358) (“Judge’s Decision”) refusing the applicant leave to apply for judicial review of the decision given by the Torture Claims Appeal Board (“Board”) on 30 May 2019 (“Board’s Decision”) concerning her non-refoulement claim (“Claim”).

Paper disposal appropriate

3.Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing. Having considered the material available to us, we agree with the Registrar that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

4.Under s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA from any civil judgment of the CA if 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 CFA for decision.

Applicants’ contentions in support of leave to appeal to CFA

5.By the notice of motion filed herein on 21 December 2021, the applicant expressed disagreement with the Judgment because: (1) it is not fair; (2) the judges just relied on hearsay; (3) if refouled, she would be killed by her enemies, which risk of harm had been ; and (4) the Director of Immigration (“Director”) and the Board did not determine the Claim with a high standard of fairness.

6.On 4 January 2022, the applicant lodged written submission. In addition to the much-repeated allegation of fear for her life in Bangladesh, the applicant simply made what appears to be a random array of complaints of failure by the first instance judge to examine the Board’s Decision with high standards of fairness and to find irrationality and/or procedural unfairness. Lastly, she prayed for more time to produce some “new” documents from Bangladesh relating to the Claim.

Discussion

7.The allegations upon which the Claim was made, the issues raised by the appeal from the Judge’s Decision and our reasons for dismissing the same have been set out in the Judgment and will not be repeated here.

8.The complaints made in the notice of motion and the written submission plainly did not engage the reasons we have given in [16] to [19] of the Judgment for dismissing the applicant’s appeal against the Judge’s Decision. Such complaints do not show how it is contended that leave should or should not be given in accordance with the relevant criteria in s 22(1)(b).

9.In our view, the applicant has plainly not raised any issue for determination by the CFA, whether of great, general or public importance. Nor do we see any scope to grant leave under the “or otherwise” limb.

Disposition

10.As neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met, we dismiss the notice of motion.

The applicant, unrepresented, appeared in person