NURHAYATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 2/2021

[2021] HKCA 1556

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 2 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1924 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 (Kwan VP and G Lam JA) handed down on 14 July 2021 ([2021] HKCA 987). The Court of Appeal dismissed her application for leave to appeal out of time against the decision of Deputy High Court Judge K W Lung dated 31 July 2020 ([2020] HKCFI 1754) refusing to grant leave to apply for judicial review concerning her non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 26 July 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged her written submissions on 23 August 2021.  Having considered her written submissions and the papers, we consider it appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Indonesia.  She came to Hong Kong to work as a domestic helper on 3 September 2012.  Her employment contract was terminated prematurely and she has overstayed since 10 September 2013.  She lodged her non-refoulement claim on 18 March 2014 on the basis that she will be harmed by her family if she is refouled because of having a child out of wedlock.

4.  She took out a summons in the court below to seek an extension of time to appeal against the decision of the judge.  Her application was late by more than one week, excluding the month of August for the court’s summer vacation.  It was refused by the judge on 30 December 2020^[1].

5.  The applicant renewed her application to the Court of Appeal on 4 January 2021.  The application was dismissed by the Court of Appeal on 14 July 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6.  In the Notice of Motion, the applicant only stated that she wants to go to the Court of Final Appeal because she did not get justice, without giving any particular grounds of appeal against the decision of the Court of Appeal. 

7.  In her written submissions, she reiterated the problem she faced in Indonesia, the procedural history of her case and the contention that she did not get true justice.

Analysis and disposition

8.  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.

9.  In the present application, the applicant’s ground of appeal and her submissions on the lack of true justice are just bare assertions without particulars or evidence in support.  In particular, she failed to demonstrate that the Court of Appeal was wrong in dismissing her application. She has not identified 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 26 July 2021.