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

CACV 420/2020

[2021] HKCA 977

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 420 OF 2020

(ON APPEAL FROM HCAL NO 226 OF 2018)

____________________

____________________

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

Date of Judgment:  10 September 2021

________________

JUDGMENT

________________

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

1.On 15 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 21 May 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 26 March 2021 for leave to appeal to the Court of Final Appeal and lodged her written submissions on 9 April 2021.

3.Pursuant to the directions made by the Registrar of Civil Appeals on 30 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 inform to the Court of Final appeal. There is some error in my case. I am totally disagree with the decision of authorities and court because there were totally relay on news and post on web news which is not real matter in actual life. Because its toward to my life in my home land in Indonesia. I do not wish to go back to my country Indonesia because my life is danger in my home land.” [sic]

5.The applicant’s grounds and arguments in the written submission lodged on 9 April 2021 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 authorities should take into account procedural fairness and the public policy of disposing non-refoulement claims as quickly as possible should be put aside;

(3)   if a litigant has not been informed fully of his right and given the opportunity to be heard with such assistance, then it cannot be said that the assistance cannot be of any use when it was not even granted in the first place;

(4)   the Director made the further decision without ensuring that the applicant was aware of her rights and the definitions behind BOR2.  The lack of language assistance and legal representation meant that she had no understanding of the process or the reason for rejecting her claim.  To date, the Board’s determination has not been explained to her via an interpreter; and

(5)   the court and the authorities have been negligent and they failed to perform a standard duty of care that specifically targeted at non-refoulement claimants like her.  She is certain that she is not the only one who does not understand English and the court procedures and yet has been discriminated and was put under a disadvantage because of this.

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 [14]-[21] 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.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.

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

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

10.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 307