RE YASMIN

CACV 244/2020

[2021] HKCA 1432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 244 OF 2020

(ON APPEAL FROM HCAL NO. 1607 OF 2018)

____________________

____________________

____________________

D E C I S I O N

____________________

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

I. Leave to appeal to the Court of Final Appeal

1.  On 23 April 2021, this Court (Cheung JA, G Lam (as he then was) and S T Poon JJ) handed down a judgment dismissing the applicant’s appeal against the decision of Campbell‑Moffat J given on 26 June 2020 in which she refused to grant leave to the applicant to apply for judicial review.

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

3.  The applicant now applies, by a notice of motion filed on 6 May 2021, for leave to appeal against our judgment to the Court of Final Appeal.  The applicant stated in her notice of motion that :

‘ I would like to infomr the Honourable Court that there is some error in law in my decision.  Decision maker just relied on COL Information and my previous facts which were in favor while rejecting my claim. Acual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the overwheming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.’

4.  The applicant also lodged her written submissions.  She stated various non-refoulement legal principles and relevant statutory provision without detailing how those provisions related to the particular circumstances of her case.

II.      Legal principles

5.  Under section 22(1)(b) of the HongKong Court of Final Appeal Ordinance (Cap. 484) (‘Ordinance’) 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.

III.     Our view

6.  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 general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the Ordinance. Nor is there any such question apparent to us from the matters she has raised in her notice of motion and written submissions. 

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

IV.     Disposition

8.  For these reasons, the notice of motion dated 6 May 2021 is dismissed.

CACV 244/2020

[2021] HKCA 549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 244 OF 2020

(ON APPEAL FROM HCAL NO. 1607 OF 2018)

____________________

____________________

____________________

J U D G M E N T

____________________

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

1)  The appeal

1.  This is an appeal by the applicant against the decision of Campbell-Moffat J in which she refused to grant leave to the applicant to apply for judicial review, but the Judge allowed an extension of time.

2.)  Factual background

2.1.  The applicant is a national of Bangladesh.  She entered Hong Kong on 12 September 2014 as a foreign domestic helper but she overstayed.  She raised a non-refoulement claim on 11 March 2016.

2.2.  The basis of the applicant’s claim is that she would be harmed or killed by her former husband who has been abusive to her.

2.3.  The background facts have been summarized in the decision of the Judge at [4].

3)  The Director’s Decision

3.  The Director of Immigration (‘the Director’) decided against the applicant’s torture claim on 18 October 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk, Bill of Rights Article 2 (right to life) risk, 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 Torture Claims Appeal Board (‘the Board’) on 28 October 2016.  After a hearing held on 8 March 2018, the Board dismissed the applicant’s appeal on 8 May 2018 (‘the Board’s Decision’).

4.2.  The Board found that there were a number of inconsistencies between the applicant’s oral evidence and her written claims to the Board.  The fact that she had divorced her husband in Bangladesh was never mentioned before the Director.  The applicant was able to travel in and out of Bangladesh freely.  There was no medical evidence of maltreatment from her former husband.  There was a delay in the applicant claiming for non-refoulement protection in Hong Kong.  The issues between the applicant and her former husband and the bank are private matters not involving the state.  There was no evidence to support the applicant’s allegation of her ownership of a house in Bangladesh, or a loan taken from the bank, or enforcement actions taken from the bank.

5)  Decision of the Judge

5.1.  The applicant applied for leave for judicial review before the Judge.  She provided no grounds for review.  

5.2.  The Judge held that the applicant had a duty to state her grounds for review but she did not.  The Judge has nevertheless dealt with the applicant’s papers carefully and found no evidence of any error of law or procedure.  

6)  Grounds of appeal

6.1.  The applicant in the notice of appeal stated that she would face hardship if refouled.  She stated that the Board relied on source of news which was not officially recognized or simply hearsay and the cases relied by the Board were outdated.

6.2.  In her written submissions, the applicant referred to general non-refoulement claim legal principles and case authorities without specifying how those principles related to her case.

6.3.  In Court, the applicant stated that her problem has increased and it is ‘dangerous for her to return home’.  She said she is married to a Pakistani in Hong Kong.  Her family learnt of this and they do not want her to return to Bangladesh.  She said her former husband also wanted to kill her and her daughter in Bangladesh is now missing.

7)  Our view

7.1.  This Court can only consider the applicant’s case on the basis that was presented to the Judge.  As repeatedly said it is for the Director and Board to investigate and make findings of fact.  The Board had already stated that it did not accept the applicant feared harm from her ex‑husband and it was aware of the applicant’s marriage in Hong Kong.  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  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 in 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].  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision. 

7.2.  We see no basis to disturb the Judge’s Decision.  Accordingly, the appeal is dismissed.