RE HIRA KANIZ FATEMA

CACV 209/2021

[2022] HKCA 759

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 209 OF 2021

(ON APPEAL FROM HCAL NO. 2298 OF 2018)

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Date of Judgment :  26 May 2022

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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) :

I.  Leave to appeal to the Court of Final Appeal

1.  On 17 September 2021, this Court (Cheung JA and Lisa Wong J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge To given on 23 April 2021 in which he 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 11 October 2021, for leave to appeal against our judgment to the Court of Final Appeal.  The applicant stated in her notice of motion the following :

‘ The High Court dismissed my leave to apply for judicial review. High Court did not find any error. I appeal to the Court of Appeal. The Court of Appeal too dismissed my apply. So I want to go to the Court of Final Appeal.’

4.  The applicant stated in her written submissions in summary the following points :

‘ 1. The applicant had political problem in her country.

2. The applicant came to Hong Kong for safety.’

II.  Our view

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.

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.

III.  Disposition

8.  For these reasons, the notice of motion dated 11 October 2021 is dismissed.

CACV 209/2021

[2021] HKCA 1305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 209 OF 2021

(ON APPEAL FROM HCAL NO. 2298 OF 2018)

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________________________

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court)  :

I.  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge To of 23 April 2021 in which he refused to grant leave to her to apply for judicial review.

2.  This appeal was scheduled to be heard on 6 September 2021.  Despite the directions contained in the letter from the High Court to the applicant dated 9 July 2021, she failed to lodge the skeleton argument by the stipulated time.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

II.  Factual background

3.  The applicant is a national of Bangladesh.  She last arrived in Hong Kong in October 2013 as a foreign domestic helper.  Her employment contract was prematurely terminated and she overstayed.  On 26 January 2018, she applied for non-refoulement protection.

4.  The basis of the applicant’s claim is that she would be harmed or killed by members of the Awami League.

5.  The background facts have been summarized in the decision of the Judge at [6] to [13].

III.  The Director’s Decision

6.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 30 May 2018. The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (‘BOR 3’), Bill of Rights Article 2 (right to life)  risk (‘BOR 2’)  as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

IV.  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 17 September 2018, the Board dismissed the applicant’s appeal on 5 October 2018 (‘the Board’s Decision’).  

8.  The Board found that a large part of the applicant’s case is based on her own speculation.  On the evidence, her intention to seek protection in Hong Kong is suspicious.  The Board was not persuaded that the verbal threats were as alleged even on low standard applicable.  The verbal threats from her husband was a private matter, and the issues with the Awami League have been settled.  The applicant failed to show a Convention reason that she was subject to persecution.  There was no evidence that the applicant would be subject to death penalty if she returned.  Considering the nature and extent of the applicant’s injuries as alleged, minimum level of severity was not attained.  The applicant’s speculation of the attitude of the authorities is not supported by evidence.  The applicant passed through Bangladesh immigration control without problem.

V.  Decision of the Judge

9.  The applicant filed her Form 86 with supporting affirmation.  In her Form 86, she stated the following grounds :

1)  the decisions of the Director and the Board were wrong;

2)  state acquiescence;

3)  insufficient weight to relevant country of origin information; and

4)  unfairness.

10.  The Deputy Judge held that the applicant’s case was rejected based on a lack of credibility in her case.  She failed on all applicable grounds.  The Court will not interfere with the findings of the Board unless there are errors of law.  There was no state acquiescence.  There was consideration of country of origin information.  State protection was at a reasonable standard.

VI.  Grounds of appeal

11.  The applicant in the notice of appeal stated that the gravity of her circumstances has not been weighed or realized.  She stated that she should have the opportunity to plead her case. Her affirmation stated that she has a good ground of appeal which was not considered in the application for leave to apply for judicial review.

VII.  Our view

12.  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]. 

13.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge.

14.  We see no basis to disturb the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.

Applicant, unrepresented, appearing in person