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

CACV 343/2020

[2021] HKCA 1428

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 343 OF 2020

(ON APPEAL FROM HCAL NO 2410 OF 2018)

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Before:  Hon Yuen and G Lam JJA in Court

Date of Written Submissions:  24 March 2021

Date of Judgment:  30 September 2021

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J U D G M E N T

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

1.This court (Hon Lam VP and Yuen JA) handed down judgment on 18 February 2021 ([2021] HKCA 172) (“the Judgment”) dismissing the applicant’s appeal against an order of DHCJ K W Lung (“the Judge”) given on 27 July 2020 refusing to give the applicant leave to apply for judicial review in respect of his non‑refoulement claim (“the Judge’s Decision”).

2.On 10 August 2020, the applicant filed a Notice of Appeal in CACV 343/2020 before this court to appeal against the Judge’s Decision.  For reasons set out in the Judgment, the appeal was dismissed.

3.On 11 March 2021, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal on the following grounds:

“I would like to inform Court of Final Appeal. There are some error in law in my case. Because its toward to my life because my still danger in my home land in Indonesia. The court and decision made authorities is totally relay (sic) on the news which is not actually true facts with my original life. So I refer to this court to let my stay in Hong Kong till my problems solved in Indonesia.”

4.Pursuant to the directions made by the Registrar of Civil Appeals on 15 March 2021, the applicant lodged her written submissions on 24 March 2021.  The Registrar further directed that the Notice of Motion shall be determined on paper only without an oral hearing.  As it is appropriate to do, we proceeded to determine this application on paper. 

5.In the applicant’s written submissions, she advanced the following grounds:

(1)  There was a lack of legal representation and language assistance for her claim on BOR 2 risk[1] before the Director of Immigration (“the Director”), which the applicant believed was essential.  The Director considered her claim on BOR 2 risk without referring her case to Duty Lawyer Service as opposed to her claims under other applicable grounds.

(2)  The Director’s decision on BOR 2 risk was made without ensuring that she was aware of her rights.  She did not understand the process and the reason for rejecting her claim due to the lack of language assistance and legal representation.  Further, the decision made by the respondent was not interpreted to her up to date.

(3)  The lack of legal assistance caused prejudice to her and the court twisted the idea of seeking legal representation from the Duty Lawyer Service as it was provided and referred by the Director and should there be any change of policy of referral, she should be notified.

6.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that 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.

7.The applicant’s intended appeal has no merit at all.  The BOR2 risk was considered at the same time as the other claims.  She had an Indonesian interpreter before the Board and before the Judge.  There is no substance in her submission regarding the Duty Lawyer and it was not a ground relied upon on the appeal.  No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.     

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

9.By reason of the above, the Notice of Motion filed on 11 March 2021 is dismissed.

The applicant, unrepresented, acting in person

[1]  This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).