Eka Mugiasih v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 381/2022, [2023] HKCA 831

On appeal from [2022] HKCFI 670

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 381 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2495 OF 2018)

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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 handed down on 24 February 2023 ([2023] HKCA 225). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 15 March 2022 dismissing the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning the applicant’s non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the applicant shall lodge written submissions on or before 22 March 2023. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, 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 entered Hong Kong to work as a foreign domestic helper on 12 March 2015 and her employment contract was prematurely terminated on 27 June 2015. She did not return to Indonesia and lodged a non-refoulement claim on 13 September 2015 on the basis that she would be harmed or killed by her father and/or her father’s creditor.

4.She 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 16 August 2022[1].

5.On 26 September 2022, the applicant filed a renewed application for extension of time to appeal. The application was dismissed by the Court of Appeal on 24 February 2023 as the applicant failed to show any prospect of success in her intended appeal.

Grounds of appeal

6.The applicant stated the following as her grounds in the Notice of Motion filed on 8 March 2023:

(1)  There is some error in the decision. Decision maker just relied on the country of origin information (“COI”) and facts which favour the rejection of her claim. Actual life is different from the situation mentioned in the COI;

(2)  The immigration officer and courts prefer to ignore the overwhelming evidence of violence towards minorities, searching for unrealistic silver lining;

(3)  The Decision betrays a biased and formulaic approach which is unlikely to fairly assess the danger of her life and was calculated to reject her claims;

(4)  As she does not have legal representation, she asks the court to provide this to her and to consider the real situation to save her life.

Analysis and disposition

7.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.

8.The applicant’s grounds were not submitted in the leave application before the Court of First Instance or in the previous application before the Court of Appeal. It is not open to the applicant to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings.

9.In any event, her grounds are just bare assertions without particulars or evidence in support. She has not identified any mistake in the Court of Appeal decision, or 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).

10.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 8 March 2023.

The Applicant, acting in person