Binti-sholekah v. Torture Claims Appeal Board and Another

CACV 322/2022

[2023] HKCA 266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 322 OF 2022

(ON APPEAL FROM HCAL NO 117 OF 2019)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.This is the Applicant’s application for relief from sanction for her failure to comply with an unless order of the Court made on 14 September 2022 (“the Unless Order”) regarding the lodgment of two sets of appeal bundle in accordance with the directions given by the Registrar of Civil Appeals on 15 August 2022. Having considered the papers before us, we consider that it is appropriate to deal with the application on paper without an oral hearing.

2.The background facts leading to the present application can briefly be summarized as follows.

3.The Applicant is an Indonesian national. She last entered Hong Kong to work as a foreign domestic helper on 18 October 2010. Her employment contract was prematurely terminated on 17 May 2011. She failed to leave Hong Kong after the expiry of her limit of stay, and was arrested by the Police on 24 October 2011. She then made a torture claim on the basis of an alleged fear of harm from her violent and abusive husband, and/or from the family of a traffic accident victim who died as a result of the injuries sustained in the accident. The family of the victim alleged that the Applicant was responsible for the accident. The Applicant’s torture claim was rejected by the Director of Immigration (“the Director”) on 28 February 2013. Her appeal against the Director’s decision was rejected by the Torture Claims Appeal Board (“the Board”) on 15 April 2014.

4.The Applicant then raised a non-refoulement claim relying on the same factual allegations. The Applicant’s non-refoulement claim based on other applicable grounds was rejected by the Director on 29 June 2018. Her appeal against the Director’s further decision was rejected by the Board on 15 November 2018.

5.The Applicant’s application for leave to apply for judicial review of the Director’s decision of 29 June 2018 and the Board’s decision of 15 November 2018 was rejected by Deputy High Court Judge Bruno Chan on 5 August 2022 (“the Order”). The Judge’s reasons for his decision were fully set out in the CALL-1 Form dated 5 August 2022, and it is not necessary to repeat them in this judgment.

6.The Applicant lodged a Notice of Appeal against the Order on 15 August 2022. In the Notice of Appeal, the Applicant merely stated the following:

“Please I still need extension time to stay in Hongkong because I am scared if I am go back to Indonesia. Sir thank you very much for your kindness”.

7.The Applicant failed to comply with the directions given by the Registrar of Civil Appeals on 15 August 2022 to lodge 2 sets of appeal bundle on or before 29 August 2022, and further failed to comply with the Unless Order requiring her to lodge 2 sets of appeal bundle by 21 September 2022.

8.Pursuant to the Unless Order, the Applicant’s appeal was dismissed on 21 September 2022.

9.The Applicant did not apply for relief from sanction within 14 days in accordance with Order 2, rule 4 of the Rules of the High Court (Cap 4A). She belatedly applied for relief from sanction on 11 January 2023. In her affirmation filed in support of the application on 21 February 2023, she confirmed that she received the Unless Order on 17 September 2022, and said that she had been advised there was a good ground of appeal (without further particulars) that was not necessarily considered at the stage of applying for leave to apply for judicial review, and she believed that the merits of her (unparticularised) ground of appeal constituted a sufficient reason or justification for the Court to exercise its discretion to allow the appeal.

10.It is clear that the Applicant has not provided any good explanation for her failure to comply with the Unless Order. More importantly, the Notice of Appeal fails to raise any viable ground(s) of appeal against the Order. Her written submissions merely set out some general principles of law, but fail to identify any alleged error in the decision of the Judge. The Applicant’s appeal has plainly no prospect of success.

11.For the above reasons, it is futile to grant the Applicant relief from sanction. The Applicant’s summons dated 11 January 2023 is accordingly dismissed.

The Applicant, acting in person