Priyati and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 615/2020

[2022] HKCA 964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 615 OF 2020

(ON APPEAL FROM HCAL NO 2902 OF 2018)

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Before:  Hon Kwan Ag CJHC, Barma JA and Au JA in Court

Date of Written Submission:  17 January 2022

Date of Judgment:  8 July 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 applicants’ 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 Au JA) handed down on 4 November 2021 ([2021] HKCA 1612). The Court of Appeal rejected their appeal against the decision of Deputy High Court Judge P Li dated 10 November 2020 ([2020] HKCFI 2837) refusing to grant leave for the applicants to seek judicial review concerning their non-refoulement claims.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 3 January 2022 that the Notice of Motion shall be determined on paper without an oral hearing. The 1^st applicant lodged written submissions on behalf of all the applicants 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 1^st applicant is a national of Indonesia. She came to Hong Kong to work as a foreign domestic helper in August 2004. She got married in Hong Kong in April 2011 and gave birth to her daughter, the 2^nd applicant herein, on 9 August 2011. The 2^nd applicant was permitted to remain in Hong Kong as a visitor until 30 August 2011. She subsequently overstayed.

4.The 1^st applicant departed from Hong Kong on 28 August 2011. Her last application for employment to work was refused on 20 October 2011. She came to Hong Kong again from Macau on 14 January 2012 as a visitor and subsequently overstayed. The 1^st and 2^nd applicants surrendered to the Immigration Department on 25 May 2012. They raised their torture claims on 15 June 2012. Their torture claims were rejected by the Director of Immigration (“the Director”) on 26 March 2013. Their appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board (“the Board”) on 13 May 2013. They then raised their non-refoulement claims on 23 October 2013.

5.The 1^st applicant gave birth to her son, the 3^rd applicant herein, in Hong Kong on 10 October 2014. She raised a non-refoulement claim on behalf of the 3^rd applicant on 29 December 2014.

6.The applicants’ claims were made on the basis that they will be harmed or killed by the 1^st applicant’s brother if they return to Indonesia because the 1^st applicant married her Pakistani husband and had children with him without her family’s consent. Their non-refoulement claims were dismissed by the Director on 26 June 2017 and the appeal was rejected by the Board on 26 October 2018.

7.The applicants filed a Form 86 on 18 December 2018 to seek leave to apply for judicial review against the Director’s decision concerning their non-refoulement claims. Their application was dismissed by the judge on 10 November 2020.

8.The applicants filed a Notice of Appeal against the judge’s decision on 23 November 2020. The appeal was dismissed by the Court of Appeal on 4 November 2021. The applicants filed a Notice of Motion out of time on 3 January 2022 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

9.In the applicants’ Notice of Motion, it was only stated that they would like to review the court’s decision as the court disregarded their dangerous situation upon their return to their home country.

10.In the written submissions, the 1^st applicant reiterated the problems they may face in Indonesia and made further contentions which may be summarised as follows:

(1)  The judge did not understand the danger she faced. If she were to return to Indonesia, the threat she would receive would no longer be merely verbal.

(2)  The Board failed to look into the case under the Indonesian context. It ignored the problems in Indonesia and selectively quoted sources which fit its purpose.

(3)  Indonesia is a communal country so it would be easy for the 1^st applicant’s family to locate her even if she relocates to other cities.

Analysis and disposition

11.Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484, “the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making application for leave to appeal.

12.Good grounds have to be shown by the applicant for the court to grant an extension of time. The relevant factors in considering whether extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

13.Section 22(1)(b) of the Ordinance 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.

14.The applicants were late for more than 4 weeks in filing the Notice of Motion. The 1^st applicant explained in her affirmation that she did not receive the letter from the court and was only informed of the decision by her case officer in December 2021.

15.The Court of Appeal’s judgment and order were sent to the applicants’ address as stated in their Notice of Appeal by post. The mail was later returned to the court by the post office. It is noted that the address stated in the Notice of Motion is different from the address previously stated in their Notice of Appeal but the applicants did not file any notice of change of address to inform the court of their change of address.

16.It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). We do not think the applicants’ delay is justifiable.

17.In any event, the applicants’ ground of appeal and submissions are just bare assertions not supported by sufficient particulars and evidence. Furthermore, they fail 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).

18.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 3 January 2022.

The 1^st Applicant (1^st Appellant), acting in person

The 2^nd Applicant (2^nd Appellant), acting in person

The 3^rd Applicant (3^rd Appellant), acting in person