Re Siwa Pariyar Hima

CACV 78/2021

[2021] HKCA 2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 78 OF 2021

(ON APPEAL FROM HCAL 354 OF 2019)

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Before:  Hon Au JA and Lisa Wong J in Court

Date of Judgment:  31 December 2021

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.Before the court is an application for leave to appeal to the Court of Final Appeal (“CFA”)  against this court’s judgment dated 16 August 2021 ([2021] HKCA 1193)  (“Judgment”), dismissing the applicant’s appeal from the decision of Deputy High Court Judge P Li (“Judge”)  dated 19 February 2021 ([2021] HKCFI 384)  (“Judge’s Decision”)  refusing her leave to apply for judicial review of the decision dated 14 January 2019 (“Board’s Decision”)  of the Torture Claims Appeal Board (“Board”)  concerning her non-refoulement claim.

Paper disposal appropriate

2.Pursuant to the direction of the Registrar of Civil Appeals (“Registrar”), unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing.  Having considered the material available to us, we agree with the Registrar that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.Under s 22(1)(b)  of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”)  or the CFA from any civil judgment of the CA 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.

Applicant’s contentions in support of leave to appeal to CFA

4.In seeking leave to appeal to the CFA, by the notice of motion filed on 7 September 2021 and written submission lodged on 21 September 2021, the applicant essentially reiterated the grounds of appeal and earlier written submission summarised in [14(1)] and [14(2)] of the Judgment.

5.In short, she contended that the lack of legal and language assistance, including the failure to provide her with translations of the Board’s Decision and the Judge’s Decision in her own language, was an error of law and/or procedure and/or amounted to procedural unfairness and/or a failure to adhere to a high standard of fairness and/or discrimination against non-refoulement claimants.

6.Separately, the applicant complained that she had not been given an oral hearing of her application for leave to apply for judicial review of the Board’s Decision.

Discussion

7.In our view, the applicant has not raised any issue for determination by the CFA, whether of great, general or public importance or otherwise. 

8.Nor do we see any scope to grant leave under the “or otherwise” limb. 

9.First, we have already dealt with the applicant’s grounds of appeal premised upon the lack of legal and language assistance in [19] to [23] of the Judgment.  Nonetheless, the applicant simply repeated the same criticisms, without engaging our reasons.

10.Second, taking into account all relevant circumstances, we do not see any merit in the applicant’s complaint that she had not been given an oral hearing of her leave application either. 

(1)  The Judge determined the leave application by way of paper disposal because the applicant did not turn up at the scheduled hearing.

(2)  While we did note the applicant’s claim that she had not received notice of the hearing before the Judge (see footnote 6 of the Judgment), a search of the court files kept in respect of the proceedings below showed that notice of such hearing had been sent by both registered and ordinary post to the address provided to the court by the applicant.

(3)  The applicant did not raise the alleged lack of opportunity to make oral submission on the leave application as one of her grounds of appeal before us.

(4)  The applicant has not identified what prejudice she had suffered as a result of her absence at the hearing before the Judge.  In particular, she has not outlined what oral submission she could or would otherwise have made at such hearing.  Indeed, as recorded in [15] of the Judgment, although the applicant did attend the hearing before us on 10 August 2021 and was provided with a Nepali/English interpreter to assist her, when given the opportunity, she had nothing to add to her notice of appeal or written submission. 

11.As neither of the statutory criteria under s 22(1)(b)  for leave to appeal to the CFA is met, we dismiss the notice of motion.

The applicant, unrepresented, acted in person