Re Tulachan Sabina

CACV 403/2021

[2022] HKCA 1402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 403 OF 2021

(ON APPEAL FROM HCAL NO 463 OF 2021)

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Before:  Hon Kwan VP and Yuen JA in Court

Date of Written Submissions:  28 January 2022

Date of Judgment:  27 September 2022

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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 handed down judgment on 24 December 2021 ([2021] HKCA 1914)  dismissing the applicant’s appeal against an order of DHCJ P Li (“the Judge”)  given on 10 August 2021 refusing to grant leave to the applicant to apply for judicial review in respect of her non-refoulement claim (“the Judge’s Decision”).

2.The facts and issues in the appeal before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.On 14 January 2022, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal.

4.The Notice of Motion contains the following grounds of appeal:

(1)  The Judges in the Court of Appeal erred in finding that the Judge had not failed to appreciate the significance of her non-refoulement claim, in particular:

(a)  She is a genuine non-refoulement claimant.

(b)  The Director of the Immigration (“the Director”)  reached the wrong decision and wrongly rejected her claim without proper inquiry.  The immigration officers should visit her country and understand the real risk she would face if refouled.

(c)  She would face dire consequences if she had continued to stay in her home country and her problem would have got worse.  She had no choice but to come to Hong Kong to seek protection.

(d)  There was a lack of assistance provided to her which was an error of law or procedural unfairness and a failure to adhere to high standards of fairness.  Her case should be assessed with caution and her vulnerability and disadvantage should be taken into account.

(2)  There was a lack of language assistance and no reasonable arrangement was made to enable her to understand the judgment.  Thus, she was deprived of the right to seek further avenues of appeal and it was a wrong exercise of case management power.

(3)  She did not have reasonable time to respond to the judgment given her language incapacity.

(4)  She was deprived of the right to make full grounds of appeal by not having the determination translated or read back to her.

(5)  She had to seek language assistance from her friend without being able to verify if everything is true and correct.  The fact that she was assisted by a court interpreter at oral hearings suggested that the Court recognizes the significance of language assistance.  The lack of such assistance in understanding the judgment is contrary to high standards of fairness and deprived her of the right to seek further avenues of appeal.

(6)  There was a lack of legal assistance and it was impossible for a self-represented litigant like her to identify errors and to advance arguments.

(7)  A judgment made without consideration of evidence and issues raised in court should be deemed as an erroneous judgment.

(8)  She has to submit all court documents in English and she was assisted by her friend who is not a legal professional.  Further, she may not always be able to obtain such assistance.

(9)  If a litigant has not been fully informed of his rights and be given the opportunity to be heard with the necessary assistance, it cannot be said that the assistance is useful as it was not even granted in the first place.

5.Pursuant to the directions of the Registrar of Civil Appeals the applicant lodged her written submissions on 28 January 2022.  We considered it appropriate to determine the Notice of Motion on paper without an oral hearing.

6.On 21 September 2022, a notice was sent by post to the applicant informing her that the Judgment would be handed down on 27 September 2022.  The same day, the applicant filed a Request for Dismissal of Appeal.  Be that as it may, for the reasons below, irrespective of her request, we dismiss the Notice of Motion in any event.   

7.In her written submissions, she had repeated her grounds of appeal as set out in the Notice of Motion.  She further quoted passages from ST v Director of Immigration[1][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  She submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.

8.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.

9.Having regard to [12] – [15] in the judgment of this court, the applicant’s intended appeal has no merits.  No question of great general or public importance has been identified as required by s.22(1)(b)  of the HKCFAO.  

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

11.By reason of the above, the Notice of Motion filed by the applicant on 14 January 2022 is dismissed.

The applicant, unrepresented, acting in person