Re Dhana Karki

CACV 295/2020

[2021] HKCA 1908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 295 OF 2020

(ON APPEAL FROM HCAL 1939 /2018)

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Before: Hon Barma JA and ST Poon J in Court

Date of Judgment: 17 December 2021

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J U D G M E N T

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

1.On 15 March 2021, this court (Barma JA and ST Poon J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 14 July 2020 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal from the decision of the Director of Immigration rejecting her non-refoulement claim.

2.The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.The applicant subsequently applied, by a Notice of Motion filed on 25 May 2021, for leave to appeal to the Court of Final Appeal out of time. The applicant stated in the Notice of Motion that:

“1. I recently became aware of the order dated 15^th March 2021.

2. I was not aware the Order has been issued to me.

3. The Judges have erred in determining that the Judge had not failed to appreciate the significance of my non-refoulement claim. The lack of assistance provided to me is an error of law or procedure, or evidence of procedural unfairness, or failure to adhere to a high standard of fairness. This is because non-refoulement claims are life and limb cases and should be assessed with caution, considering my vulnerability and disadvantage.

4. The Judges have not addressed the issues in my skeleton submission dated 2 Feb 2021 seeking leave to appeal against the decision of the judge dated 14 July 2020.

5. I was deprived of the right to make full grounds for appeal. By not having the Determination translated or read back to me, I could not have understood the Determination to the fullest and is unfair to me. I had to submit everything in English because the Court would not accept grounds written in my own language, otherwise I would have done that.

6. Instead, I had to ask for help without having the ability to verify if everything is correct and true. The fact that oral hearings and hearings were arranged with interpreters mean that the Court recognizes the significance of language assistance, and therefore such assistance should extend to understanding the judgment. This is contrary to the high standard of fairness required by law if this results in a deprivation of the right of a litigant to seek further avenues of appeal.

7. I reiterate the authorities, despite knowing of my language incapability, have not made reasonable arrangements to enable me to understand the content of the judgments and thereby depriving me of the right to seek further avenue of appeal. This is a wrongful exercise of case management power and I verily believe this should be looked into carefully as a case management power should extend all the way to how a judgment is delivered.

8. I stand by my grounds about the lack of procedural unfairness and such discrimination against non-refoulement claimants is unacceptable. Even in the Court I admitted I had a friend to help me to prepare Form 86 and the affirmation for judicial review. But it does not mean that apparently, I always can find someone to assist me with interpretation/translation and to deal with English documents. As a result, I am making this affirmation to the best of my knowledge only.

9. Instead, I had to ask for help without having the ability to verify if everything is correct and true. The fact that oral hearings and hearings were arranged with interpreters mean that the Court recognizes the significance of language assistance, and therefore such assistance should extend to understanding the judgment. This is contrary to the high standard of fairness required by law if this results in a deprivation of the right of a litigant to seek further avenues of appeal.

10. A judgment that has been made with the lack of evidential consideration of issues raised in Court should be deemed an erred judgment.

11. If a litigant has not been informed fully of his rights and be given the opportunity to be heard with such assistance, then it cannot be said that the assistance cannot be of any use as it was not even granted in the first place.

12. I seek a reconsideration of the case with an oral hearing arranged.”

4.In the affirmation filed on 25 May 2021, the applicant deposed that:

“I did not receive decision letter even I arrived at the Court on March 15, 2021 to receive my decision and waiting outside the court room and I just got to know it in April and I was not aware the time limit for file Notice of Motion.”

5.The applicant lodged a written submission in support of the application on 8 June 2021. In the written submission, the applicant reiterated the matters raised in the Notice of Motion. She also submitted that the judgment did not make sense and that her grounds of appeal had not been considered thoroughly.

6.Having considered the applicant’s Notice of Motion, affirmation and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers. We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.The applicant alleged that she arrived at court on 15 March 2021 but she did not receive the judgment. She did not provide any particulars to support this bare assertion. We are of the view that the applicant has not provided any reasonable explanation for her delay in bringing the intended appeal. We nonetheless go on to consider the merits of her application.

8.The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal. The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484. Nor is any such question apparent to us from the matters she has raised.

9.In the Notice of Motion, the applicant has simply regurgitated the arguments advanced in the appeal before us. She did not cite any authorities to support her propositions and has failed to substantiate any error in our judgment. As for the complaints that this court has failed to consider her grounds of appeal and that the judgment was illogical, the applicant has failed to provide any particulars and these grounds are not in our view reasonably arguable before the Court of Final Appeal.

10.We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.For these reasons, the Notice of Motion dated 25 May 2021 is dismissed.

The applicant acting in person