Case Document

100%Judiciary

CACV 527/2018

[2019] HKCA 850

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 527 OF 2018

(ON APPEAL FROM HCAL NO 316 OF 2018)

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RE:

SITI KHOTIMAH

Applicant

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Before: Hon Chu, Barma and Au JJA in Court

Date of Written Submissions: 29 April 2019

Date of Judgment: 2 August 2019

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.By a judgment dated 8 April 2019 ([2019] HKCA 401) (“the Judgment”), this Court (Hon Chu, Barma and Au JJA) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 12 October 2018 refusing her leave to apply for judicial review (“the Deputy Judge’s Decision”). The intended judicial review was against the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (“the Board”) dated 1 December 2017 (“the Board’s Decision”) and the decisions of the Director of Immigration (“the Director”) dated 10 December 2015 (“the Director’s First Decision”) and 20 January 2017 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim. The applicant now seeks leave to appeal to the Court of Final Appeal.

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

3.By a Notice of Motion dated 16 April 2019, the applicant applied for leave to appeal against the Judgement to the Court of Final Appeal.

4.In the Notice of Motion, the applicant set out the following grounds:

“I am not satisfied from to the decision. This is lead toward my life more danger in my home land in Indonesia because I am fear of my life to return back to my country Indonesia. So please help me to stay till my problem finished in Indonesia.” [sic]

5.In compliance with the directions given by Master Au-Yeung on 18 April 2019, the applicant lodged her written submission on 29 April 2019. In her written submission, the applicant elaborated that her case was not fully considered on the following grounds:

“3. I request for hearing for appeal at the court of appeal. I was not aware I had to lodge skeleton submissions I did not know the failure to submit skeleton submission mean no oral hearing.

4. since I did not have oral hearing for application for leave to apply for judicial review I should have hearing this time.

5. it is unfair that the high court judges never heard me in person.

6. there was lack of legal representation for BOR2 assessment. I believe this is essential because it is part of department’s assessment on my claim.

7. the lack of legal representation for BOR2 assessment, paired together with the failure to provide me with sufficient language assistance given my vulnerability in terms of language proficiency, has been detrimental to my case I believe such assistance is essential as it was part of the department’s assessment on my claim. The department considered my BOR2 without referring my case to the duty lawyer service as opposed to my all other applicable ground.

8. there is no evidence showing otherwise that I should not be entitled to the representation as the high standard of fairness laid down by previous court were directed toward legal representation for the assessment before the director.

9. the further decision was determined by the director of immigration without ensuring that I am aware of my rights and for the definitions behind BOR2. Further, the lack of language assistance and legal representation meant that I had no understanding how the lack of legal representation had caused prejudice. The process or the reasons for rejecting my claim to date.

10. I have demonstrated how the lack of legal representation had caused prejudice the court has twisted the idea of seeking representation from the duty lawyer service as the duty lawyer service was provided to me by a referral from the director of immigration to the duty lawyer service should there be change in policy or method of referral, I should be notified as a self‑represented litigant.

11. all acts of the authorities have been highly discriminatory and unfair to me.”[sic]

6.Despite the lengthy submissions, the applicant essentially advanced three grounds: (a) the lack of oral hearing; (b) the lack of language assistance; and (c) the lack of legal representation in her BOR2 assessment.

7.We have duly considered the applicant’s Notice of Motion and her written submission. Pursuant to paragraph 3 of Practice Direction 2.1, we proceeded to consider this application on papers without any oral hearing.

8.First of all, we have dealt with the applicant’s abandonment of right to an oral hearing at [2] ‑ [3] of the Judgment. The notice of hearing was posted to the applicant on 22 January 2019 and the applicant was directed and warned of the result of failing to lodge the skeleton submission. There was no evidence suggesting that the applicant did not receive the notice of hearing. Further, the applicant filed her notice of motion and written submissions in hand-written English. Either the applicant is proficient in English or she had language assistance. Therefore, she should be able to understand the direction and warning in the notice of hearing.

9.Secondly, the rest of the grounds advanced in the applicant’s written submissions were already dealt with by the Deputy Judge. He had found the lack of language assistance or legal representation was not reasonably arguable ground for leave to be granted. He also found that the high standard of fairness was achieved in the Board’s Decision: see [14] ‑ [15] of the Deputy Judge’s Decision. We do not find any legal error in his decision: see [18] of the Judgment.

10.Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, leave to appeal to the Court of Final Appeal may be granted if 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.

11.None of the grounds raised by the applicant identified any errors in the Judgment. These are not viable grounds.

12.In any event, for the reasons that we gave in the Judgment, we did not see any prospect of success in the applicant’s intended appeal against the Deputy Judge’s Decision. None of the questions raised by the applicant in the Notice of Motion or in her written submission involve any question of great general or public importance such that it ought to be submitted to the Court of Final Appeal for decision. Nor do we see any basis to grant leave on the “otherwise” limb. The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance are not met.

13.Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss her Notice of Motion.