Tri-nuriyati v. Torture Claims Appeal Board

CAMP 271/2021

[2022] HKCA 1183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 271 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1547 OF 2018)

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BETWEEN

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Before:  Hon Kwan VP and Chu JA in Court

Date of Written Submission:  12 May 2022

Date of Judgment:  19 August 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 Chu JA)  handed down on 18 March 2022 ([2022] HKCA 389). The Court of Appeal dismissed her application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 28 April 2021 ([2021] HKCFI 1169)  refusing to grant 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 28 April 2022 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged her written submissions on 12 May 2022.  Having considered her 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 Indonesia.  She arrived in Hong Kong to work as a foreign domestic helper but was prematurely terminated following her arrest for soliciting for an immoral purpose and breach of condition of stay. The applicant submitted her claim for non-refoulement on the basis that she would be harmed or killed by a money-lender who lent funds to her father.

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.  It was refused by the judge on 15 July 2021[1].

5.The applicant renewed her application to the Court of Appeal on 22 July 2021.  The application was dismissed by the Court of Appeal on 18 March 2022 as there is no prospect of success in the intended appeal.[2]

Grounds of appeal

6.The grounds of appeal in the Notice of Motion may be summarised as follows:

(1)  There is error in law in the judges’ decisions for not having applied the principle of procedural fairness by which the Director of Immigration was required to give reasons to justify his decision and the principle of irrationality.

(2)  The decision maker just relied on the Country of Origin information (“COI”)  which favours the rejection of the applicant’s claim.  The applicant claims that the actual situation is different from the COI.

(3)  The authorities ignored the overwhelming evidence of violence towards the minorities searching for unrealistic silver lining.

(4)  Her life is in danger if she is returned to Indonesia.

7.In her written submission, the applicant has submitted the same arguments (some of which are verbatim)  that were previously before the Court of Appeal.  These submissions have summarised at §11 of our previous judgment and will not be repeated here.

Analysis and disposition

8.Under section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (Cap 484, “the Ordinance”), an 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. 

9.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).

10.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.

11.In the present application, the applicant was over one week late in filing her Notice of Motion.  She explained in her affirmation that she was unaware of the time limit for filing and she was not legally represented.  We do not find her reasons for the delay acceptable as she had previously taken out a summons for extension of time to appeal.  We are inclined to think she must have been aware that there are time limits for certain court procedures. We do not think she has shown any good ground for the court to grant an extension of time for her to file the Notice of Motion.

12.In any event, the grounds in the Notice of Motion are devoid of merits. She has clearly failed to demonstrate that the Court of Appeal was wrong in dismissing her application.  Her contention that there are errors in law is just a bare assertion without any elaboration or evidence in support.  Besides, she has not identified 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).

13.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 28 April 2022.

The Applicant, acting in person