Case Document

100%Judiciary

CACV 192/2018

[2018] HKCA 961

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 192 OF 2018

(ON APPEAL FROM HCAL 767/2017)

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RE:

TAMRAKAR GITA

Applicant

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Before: Hon Yuen JA, Chu JA and Barma JA in Court

Date of Handing Down Judgment: 20 December 2018

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J U D G M E N T

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

1.On 24 September 2018, this court (Yuen and Barma JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the judge”) on 21 May 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decisions of the Torture Claims Appeal Board (“the Board”) dismissing her appeal from the decisions of the Director of Immigration rejecting her non‑refoulement claim.

2.The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.The applicant subsequently applied, by a notice of motion dated 2 October 2018, for leave to appeal to the Court of Final Appeal. The applicant stated in her notice of motion that:

“1. I could not have possibly identify what information I could have provided or what argument I could have raised before the Board, as I was not given adequate language assistance. Furthermore, there was no oral hearing at the Torture Claims Appeal Board and hence the Board made no findings as to credibility. Later on I could not have responded to the request for further information as I could not understand the letter. My case should have been referred to the Duty Lawyer Service so as to have the grounds explained to me.

2. If the Court decides that by explaining my ‘rights’ to me ‘presumably through an interpreter’ meets the minimum threshold of language assistance, then I question why none of these were provided to me when the Director of Immigration sent the letter requesting for further information, as well as for the hearing bundle to be read back to me. Furthermore, no judgments so far other than the Notice of Decision has bene read back to me through an interpreter, and that is via the assistance of an interpreter arranged by the Duty Lawyer Service only.”

4.In compliance with the directions of the court, the applicant lodged a written submission dated 15 October 2018 but received on 16 October 2018. In her written submission, the applicant reiterated the matters raised in the notice of motion.

5.Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers. We have, therefore, determined the applicant’s application on the basis of her notice of motion and written submission.

6.The matters stated by the applicant in her notice of motion 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, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484. Nor is any such question apparent to us from the matters she has raised in her notice of motion and her written submission. We note that there was in fact a hearing before the Board. The Board did not make a finding as to her credibility because the applicant chose not to testify ([32] of the Board’s Decision). As for the ground based on the alleged lack of language assistance, we have addressed this ground at [17] of our judgment, where we noted that the applicant admitted to having access to language assistance. We also found that the applicant had no difficulty in presenting her arguments. Therefore, the matters raised in the notice of motion are plainly not reasonably arguable before the Court of Final Appeal.

7.We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

8.For these reasons, the notice of motion dated 2 October 2018 is dismissed.