Re Nila Agustina

CACV 118/2020

[2021] HKCA 152

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 118 OF 2020

(ON APPEAL FROM HCAL 1172/2018)

____________________

____________________

Before:  Hon Lam VP, Chu and Pang JJA in court

Date of Written Submissions: 4 January 2021

Date of Judgment:  5 February 2021

___________________

J U D G M E N T

___________________

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

1.On 17 December 2020, the Applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 12 November 2020. In that judgment we dismissed the Applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 6 May 2020 dismissing her application for leave to apply for judicial review.

2.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 (“CFA”) at the discretion of this Court or the CFA 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 CFA for decision.

3.Pursuant to section 24(2) of the Ordinance an appellant has 28 days from the date of the judgment to seek leave to appeal to the CFA.  In the present case, the time for the Applicant to seek leave to appeal against this Court’s judgment of 12 November 2020, expired on 10 December 2020. 

4.As the Applicant did not apply for leave to appeal to the CFA within time, good and sufficient ground must be shown by the Applicant before the court will exercise its discretion to grant an extension of time: see: section 24(5) of the Ordinance. See also: Full Wisdom Holdings Ltd v Traffic Stream Infrastructure Co Ltd CACV 266/2003, 27 July 2004; Bowlstar (HK) Ltd v Ho Kwai Po CACV 156/2006, 10 July 2007; Elijah Saatori v Raffles Medical Group CACV 109/2008, 11 March 2009; and Tsit Wing (Hong Kong) Company Limited & Others v TWG Tea Company Pte Ltd & Another (unreported) CACV 191/2013, 29 January 2015.

5.In the present case, the Notice of Motion was late by 7 days.  While the delay is not lengthy, the Applicant has not given any explanation or justification for the delay.

6.In her Notice of Motion for leave to appeal to the CFA, the Applicant raised the following matters in support of her application:

“ I would like to inform the Court of Final Appeal. There is some error in law in my decision maker just relied on COL Information and my previous facts which were favor on reject my claim.  Actual life occur different situation then mentioned COL Information.  Officer and Court prefers to ignore the overwhelming of the evidence of this vialance towards a bias and formula approach unlikely fairly access the danger of my life and clearly calcite to reject my claim.” [sic]

7.Pursuant to the Court’s directions of 18 December 2020, Applicant lodged her written submissions in support on 4 January 2021.  In those submissions, the Applicant stated that that it was unfair that the Judge never heard her in person.  She requested a hearing at this Court for her present Notice of Motion.

8.Practice Direction 2.1, Application for Leave to Appeal to the Court of Final Appeal filed in the Court of Appeal in Civil Cases, provides at section 3:

“ Subject to any direction or order made by the Court, all leave applications will be dealt with and determined on paper without an oral hearing. …

(g) … The Court may, if it considers appropriate, direct an oral hearing to be held to determine the application. …”

9.Having reviewed the Notice of Motion and the applicant’s written submissions, we are of the view that it is appropriate to determine the Notice of Motion on paper without an oral hearing.

10.The Applicant submitted that because she was not provided with language assistance and legal representation on the assessment of BOR 2 risk[1] by the Director of Immigration (“the Director”) after her non-refoulement claim was rejected on all other applicable grounds, she did not understand the process or reason for rejection.  She argued that the Director made his decision without ensuring that she was aware of her rights and of the definition of BOR 2 risk.  As well, the Applicant stated that the decision of the Torture Claim Appeal Board (“the Board”) was not read to her via an interpreter.

11.In addition, the Applicant submitted that the Court and the authorities were negligent and failed to meet a standard of care to ensure that non-refoulement claimants like the Applicant were not put at a disadvantage as a result of not understanding English and the court’s procedures.  The Applicant further submitted that the authorities have shown a discriminatory attitude toward claimants in the quick disposal of such claims.

12.The arguments in the Applicant’s current submissions were not raised before the Judge or in the substantive appeal at this Court.  An application for leave to appeal to the CFA is not the occasion for new arguments to be canvassed.

13.Moreover, such arguments do not give rise to valid public law grounds for reversing the Board’s decision.  The Applicant’s arguments regarding lack of legal or language assistance are untenable.  As this Court (differently constituted) has repeatedly held, the high standard of fairness required by law would not entail an interpretation service being made available at any time the applicant desires: see Re Zunariyah [2018] HKCA 14; Re Lopchan Subash [2018] HKCA 37; Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2019] HKCA 1403.

14.In addition, the Applicant’s statement that the Judge never heard her in person is inaccurate. According to the court’s records, the Applicant was present at an oral hearing before the Judge on 23 October 2019.

15.The Applicant has not raised any reasonably arguable ground of appeal on the merit of her claim, or any discernible or arguable ground for disturbing our judgment.  The arguments in her current submissions do not identify any specific error in our judgment or the judgment of the court below.

16.In any event, in the circumstances, we do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

17.For these reasons, we refuse to extend time for her late application for leave to appeal to the CFA, and dismiss the Applicant’s Notice of Motion accordingly.

The applicant acting in person