Case Detail

BINTI-SHOLEKAH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

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[2023] HKCA 591-EN-2023-04-27

BINTI-SHOLEKAH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

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CACV 322/2022, [2023] HKCA 591

On Appeal From [2022] HKCFI 2422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 322 OF 2022

(ON APPEAL FROM HCAL NO 117 OF 2019)

________________________

BETWEEN
	BINTI-SHOLEKAH	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD	1^st Putative
		Respondent
	DIRECTOR OF IMMIGRATION	2^nd Putative
		Respondent

________________________

Before:

Hon Au and Chow JJA in Court

Date of Written Submissions:	21 March 2023
Date of Judgment:	27 April 2023

________________

J U D G M E N T

________________

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

1. On 5 August 2022, Deputy High Court Judge Bruno Chan made an order (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the Director of Immigration’s decision dated 29 June 2018 and the Torture Claims Appeal Board’s decision dated 15 November 2018.

2. On 15 August 2022, the Applicant lodged an appeal to the Court of Appeal against the Order.

3. On 14 September 2022, the Court of Appeal made an unless order (“the Unless Order”) requiring the Applicant to comply with the directions given by the Registrar of Civil Appeals on 15 August 2022 concerning the lodgement of two sets of appeal bundle. The Applicant failed to comply with the Unless Order, and her appeal was dismissed on 21 September 2022.

4. On 11 January 2023, the Applicant applied for relief from sanction in accordance with Order 2, rule 4 of the Rules of the High Court (Cap 4A).

5. On 8 March 2023, the Court of Appeal gave its judgment (“the CA Judgment”) dismissing the Applicant’s application for relief from sanction.

6. By Notice of Motion dated 9 March 2023, the Applicant applies for leave to appeal the CA Judgment to the Court of Final Appeal. In the Notice of Motion, the Applicant states as follows:

“I would like to inform 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 favour while rejecting my claim. Actual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the overwhelming 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.” [sic]

7. In her written submissions dated 21 March 2023, the Applicant sets out some general principles of law relating to non-refoulement claims, but fails to explain how those principles are relevant or applicable to her situation. The Applicant also fails to identify any error in the CA Judgment.

8. Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter 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. No question of great general or public importance involved in the proposed appeal is identified in the Notice of Motion. We are unable to see any such question being involved in the proposed appeal. We are satisfied that the intended appeal has no merits and no reasonable prospect of success. There is also no basis to grant leave to appeal on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

10. Accordingly, the application for leave to appeal is refused and the Notice of Motion is dismissed.

(Thomas Au)
Justice of Appeal

(Anderson Chow)
Justice of Appeal

The Applicant, acting in person

CACV 322/2022

[2023] HKCA 266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 322 OF 2022

(ON APPEAL FROM HCAL NO 117 OF 2019)

________________________

BETWEEN
	BINTI-SHOLEKAH	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD	1^st Putative
		Respondent
	DIRECTOR OF IMMIGRATION	2^nd Putative
		Respondent

________________________

Before:

Hon Au and Chow JJA in Court

Date of Written Submissions:	21 February 2023
Date of Judgment:	8 March 2023

_______________

J U D G M E N T

_______________

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

1. This is the Applicant’s application for relief from sanction for her failure to comply with an unless order of the Court made on 14 September 2022 (“the Unless Order”) regarding the lodgment of two sets of appeal bundle in accordance with the directions given by the Registrar of Civil Appeals on 15 August 2022. Having considered the papers before us, we consider that it is appropriate to deal with the application on paper without an oral hearing.

2. The background facts leading to the present application can briefly be summarized as follows.

3. The Applicant is an Indonesian national. She last entered Hong Kong to work as a foreign domestic helper on 18 October 2010. Her employment contract was prematurely terminated on 17 May 2011. She failed to leave Hong Kong after the expiry of her limit of stay, and was arrested by the Police on 24 October 2011. She then made a torture claim on the basis of an alleged fear of harm from her violent and abusive husband, and/or from the family of a traffic accident victim who died as a result of the injuries sustained in the accident. The family of the victim alleged that the Applicant was responsible for the accident. The Applicant’s torture claim was rejected by the Director of Immigration (“the Director”) on 28 February 2013. Her appeal against the Director’s decision was rejected by the Torture Claims Appeal Board (“the Board”) on 15 April 2014.

4. The Applicant then raised a non-refoulement claim relying on the same factual allegations. The Applicant’s non-refoulement claim based on other applicable grounds was rejected by the Director on 29 June 2018. Her appeal against the Director’s further decision was rejected by the Board on 15 November 2018.

5. The Applicant’s application for leave to apply for judicial review of the Director’s decision of 29 June 2018 and the Board’s decision of 15 November 2018 was rejected by Deputy High Court Judge Bruno Chan on 5 August 2022 (“the Order”). The Judge’s reasons for his decision were fully set out in the CALL-1 Form dated 5 August 2022, and it is not necessary to repeat them in this judgment.

6. The Applicant lodged a Notice of Appeal against the Order on 15 August 2022. In the Notice of Appeal, the Applicant merely stated the following:

“Please I still need extension time to stay in Hongkong because I am scared if I am go back to Indonesia. Sir thank you very much for your kindness”.

7. The Applicant failed to comply with the directions given by the Registrar of Civil Appeals on 15 August 2022 to lodge 2 sets of appeal bundle on or before 29 August 2022, and further failed to comply with the Unless Order requiring her to lodge 2 sets of appeal bundle by 21 September 2022.

8. Pursuant to the Unless Order, the Applicant’s appeal was dismissed on 21 September 2022.

9. The Applicant did not apply for relief from sanction within 14 days in accordance with Order 2, rule 4 of the Rules of the High Court (Cap 4A). She belatedly applied for relief from sanction on 11 January 2023. In her affirmation filed in support of the application on 21 February 2023, she confirmed that she received the Unless Order on 17 September 2022, and said that she had been advised there was a good ground of appeal (without further particulars) that was not necessarily considered at the stage of applying for leave to apply for judicial review, and she believed that the merits of her (unparticularised) ground of appeal constituted a sufficient reason or justification for the Court to exercise its discretion to allow the appeal.

10. It is clear that the Applicant has not provided any good explanation for her failure to comply with the Unless Order. More importantly, the Notice of Appeal fails to raise any viable ground(s) of appeal against the Order. Her written submissions merely set out some general principles of law, but fail to identify any alleged error in the decision of the Judge. The Applicant’s appeal has plainly no prospect of success.

11. For the above reasons, it is futile to grant the Applicant relief from sanction. The Applicant’s summons dated 11 January 2023 is accordingly dismissed.

(Thomas Au)
Justice of Appeal

(Anderson Chow)
Justice of Appeal

The Applicant, acting in person