RE MONI ROHIMA KHATUN

CACV 101/2019

[2019] HKCA 1145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 101 OF 2019

(ON APPEAL FROM HCAL NO. 666 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court):

1)  Leave to appeal to Court of Final Appeal

1.1  On 2 July 2019, this Court handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam given on 21 February 2019 in which he refused to grant leave to the applicant to apply for judicial review (‘Decision of the Judge’).

1.2  The facts and issues in the appeal before the Court of Appeal, as well as the Court’s reasons for dismissing it, are set out in our judgment.  We will not repeat them here.

1.3  The applicant now applies, by a notice of motion dated 18 July 2019, for leave to appeal against our judgment to the Court of Final Appeal.

1.4  It is difficult to follow the contents of the applicant’s notice of motion.  It seems that the applicant is saying that her life is still in danger: her ex-husband is still searching for her and trying to kill her and she fears for her life.  She then repeats the procedural history of her case and the various applications she made to the Court.  She claims that her case is reasonably arguable and that it has significant public importance, without giving particulars.  She also repeats the factual background information of her case.

1.5  The applicant’s written submission is equally difficult to follow.  It contained repetition of the contents of the notice of motion.

1.6  At page 6 (paragraph 14), she complained that the Judge’s ‘reasoning’ at paragraphs 15 to 18 ‘fell short of rigorous examination…’.  We note, however, paragraphs 15 to 18 of the Judge’s decision are not reasons as such but a summary by him of the factual background of the case.

1.7  Page 5 (paragraph 13) and page 6 to page 13 of the applicant’s written submissions are her complaints against the Board, none of which were complaints against the Judge.

1.8  She produced two documents (exhibits A-1 and A-2) in the Bengali language without providing an English translation. We have held in Quintero Hasle Calise[2018] HKCA 832 at paragraphs [22]-[23] that communications with the Court should be restricted to either in the English or Chinese language in accordance with section 3(1) of the Official Languages Ordinance (Cap. 5). The applicant has failed to comply with the requirement.  In any event, we have obtained the English translation of these exhibits from the Court Language Section on 21 August 2019.  We have perused the exhibits and considered their contents.  The exhibits are new evidence or arguments that have not been ventilated in the Court below.  Neither has leave been obtained for the admission of this evidence.  We will not entertain new arguments which are fact sensitive and have not been considered below: United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [40]-[41].

2)  Legal principles

2.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’) leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

3)  Our view

3.1  The matters stated by the applicant in her notice of motion and written submissions do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the HKCFAO.  Nor is there any such question apparent to us from the matters she has raised in her notice of motion or written submissions.

3.2  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

4)  Disposition

4.  For these reasons, the notice of motion dated 18 July 2019 is dismissed.

Applicant, unrepresented, acting in person

CACV 101/2019

[2019] HKCA 742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 101 OF 2019

(ON APPEAL FROM HCAL NO. 666 OF 2018)

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J U D G M E N T

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

1)  The appeal

1.1   This is an appeal by the applicant against the decision of Deputy High Court Judge Josiah Lam given on 21 February 2019 in which he refused to grant leave to the applicant to apply for judicial review.

1.2   This appeal was scheduled to be heard on 18 June 2019.  Despite the directions contained in the letter from the High Court to the applicant dated 21 March 2019, the applicant failed to lodge the skeleton argument by 21 May 2019.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)  Factual background

2.1   The applicant is a national of Bangladesh.  In March 2015, she came to Hong Kong as a domestic helper.  After her employment was terminated prematurely she overstayed.  On 6 July 2015, the applicant surrendered to the Immigration Department.  On 17 March 2016, the applicant raised a non‑refoulement claim.

2.2   The basis of the applicant’s claim is that she would be harmed or killed by her ex-husband Shamsun, Abul (Shamsun’s brother), the Hindu community and the Muslim community in her village.

2.3   The background facts have been summarized in the decision of the Judge at [3]-[20].

3)  The Director’s Decision

3.   The Director decided against the applicant’s torture claim on 28 April 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (risk of life) risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

4.1   The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 15 November 2017, the Board dismissed the applicant’s appeal on 29 March 2018 (‘the Board’s Decision’).

4.2   The Board found that there were a number of unsatisfactory features that required explanation, which was not forthcoming since the applicant chose not to answer questions.  The Board did not accept Abul threatened to kill the applicant.  There was no state acquiescence of any kind found.  The applicant simply did not inform the local police.  There was no finding of any torture risk, persecution risk, BOR 2 or BOR 3 risks.

5)  Decision of the Judge

5.   The Judge held that the assessment of evidence and country of origin materials are within the province of the Board (and the Director).  The Judge could not find fault in the Board’s Decision.  Even though the Board did not need to decide the case on country of origin information, the Board did refer to country of origin information anyway.  There was no evidence of cherry picking information.  

6)  Grounds of appeal

6.   The applicant in the notice of appeal referred to her grounds of appeal contained in her supporting affirmation which gave bare assertions that the Judge was wrong in holding there was no state acquiescence, and that he failed to give detailed reasons in his Decision.

7)  Our view

7.1   We are of the view that the applicant’s appeal is without merits.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors of law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [38] and [39].  None of these errors exists in this case.

7.2   Accordingly, the appeal is dismissed.