Kundiana v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 248/2020

[2021] HKCA 969

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 248 OF 2020

(ON APPEAL FROM HCAL NO 270 OF 2018)

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Before:  Hon Chu JA and S T Poon J in Court

Date of Judgment:  10 September 2021

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JUDGMENT

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Hon S T Poon J (giving the Judgment of the Court):

1.On 8 March 2021, this Court (Chu JA and S T Poon J) handed down our judgment^[1] (the “Judgment”) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 2 July 2020 refusing to extend the time for the applicant to apply for judicial review. The applicant had sought judicial review of the decision of the Torture Claims Appeal Board dismissing her appeal from the decision of the Director of Immigration rejecting her non-refoulement claim.

2.The applicant filed a Notice of Motion on 22 March 2021 for leave to appeal to the Court of Final Appeal.  Whilst both the 1^st and 2^nd applicants were named on the Notice of Motion, this application is deemed to have been taken out by the 1^st applicant only as we have granted leave to the 2^nd applicant to apply for judicial review as per the Judgment of 8 March 2021.  The 1^st applicant lodged her written submissions on 31 May 2021.

3.Pursuant to the directions made by the Registrar of Civil Appeals on 24 March 2021, the Notice of Motion shall be determined on paper only without an oral hearing, unless the court otherwise directs.  We agree it is appropriate to determine this application on paper.

4.In the Notice of Motion, the applicant stated as follows:

“I would like to Court of Final Appeal. There is some error in my case. I am totaly disagree with the decision of authorities and court becease there not real matter in acutual. Because there were totaley relay on news and post on web which is not real matter in acutual. Because its toward to my life in my home land in Indonesia. I do not want go back to Indonesia because my life in danger in my home country.” [sic]

5.In the written submissions, the applicant’s grounds and arguments can be summarised as follows:

(1)   the applicant disagrees with the decisions of the Director and the Board and she thinks that those decisions were made unfairly;

(2)   the applicant was never provided with proper legal and language assistance.  The determination of the Board was not read to her in her language.  The applicant believes that it was procedurally unfair not to provide proper assistance to non-refoulement claimants;

(3)   the Board had unlawfully fettered its discretion by refusing her appeal “on the grounds that they did not satisfy the requirement”;

(4)   the Board acted in a procedurally unfair manner in dealing with her appeal;

(5)   the Board’s refusal of her appeal was unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness; and

(6)   the Board failed to meet the greater care and duty owed to a self-represented claimant.

Discussion and disposition

6.We note that the applicant’s present arguments are essentially the same as those she has already put forward which we have addressed in detail at [16]-[29] of the Judgment.  Other than repeating her such arguments, the applicant failed to identify with any particularities or errors in the Judgment.  These are not viable grounds of appeal.

7.Moreover, the grounds concerning the lack of language assistance have already been sufficiently dealt with by the Court of First Instance and this Court in the previous judgments.  The judge’s determination is well founded.  The Court of Appeal has held in the past that the high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire (Re Gurung Sagar [2019] HKCA 658, para 12) and that an applicant of a non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings (Re Paswan Shibu Lal, CACV 284/2017, 4 May 2018, para 21).

8.In the present application, the applicant has demonstrated that she was able to deal with English documents and put forward her grounds and submissions in English, or that she has obtained assistance for the preparation of the same.  Further, the applicant was given an oral hearing before this court on 3 December 2019.  During the hearing, she was assisted by an interpreter.  She confirmed that she had nothing to add.

9.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that leave to appeal to the Court of Final Appeal shall be granted at the discretion of the Court of Appeal or the Court of Final Appeal if the question in the appeal involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

10.No question of great general or public importance has been identified in the grounds in the Notice of Motion.

11.Nor do we see any basis for granting leave on the “or otherwise” limb under section 22(1)(b).

12.In the circumstances, the statutory requirements for giving leave to appeal is not met.  Accordingly, we dismiss the Notice of Motion.

The applicant, unrepresented, acted in person.

[1] [2019] HKCA 250