Komala Dewi Bt Tarnipan Samiri v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 92/2023, [2023] HKCA 1382

On appeal from [2023] HKCFI 608

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 92 OF 2023

(ON APPEAL FROM HCAL NO 743 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.This is an application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 5 July 2023 ([2023] HKCA 804). The Court of Appeal dismissed the applicant’s appeal against the decision of Deputy High Court Judge K W Lung dated 14 March 2023 refusing to grant leave for the applicant to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the notice of motion shall be determined on paper without an oral hearing. The applicant lodged her written submissions on 20 July 2023. Having considered her written submissions and the papers, we think it appropriate to determine this application on paper and proceed to do so.

3.The applicant stated the following grounds of appeal in her notice of motion filed on 7 July 2023:

(1)  There is some error in the decision.

(2)  The Director of Immigration and the Board totally relied on some web news which is not officially recognized and old facts not in favour of her claim.

(3)  Her case was not determined fairly.

4.In her written submissions, she further contended that:

(1)  Whilst it may be true that interpretation service does not need to be made available at all times to a non-refoulement claimant, it does not mean that the basic right of a litigant to understand the content of the process or the judgment can or should be deprived of.

(2)  In her case, no assistance has been given to her with regard to her BOR 2 risk claim and the authorities have failed to acknowledge this.

(3)  The lack of sound judgment and fairness throughout the non-refoulement claim process is appalling and should not be tolerated. The Court of Appeal should investigate, point out and correct such misbehaviour.

(4)  The court and the authorities have been negligent and failed to perform a standard duty of care which is specifically targeted at non-refoulement claimants like the applicant who is discriminated against and put at a disadvantage for not understanding the English language and the court procedures.

Analysis and disposition

5.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

6.The Court of Appeal has duly considered her appeal and given detailed reasons for rejecting the appeal. The applicant failed to identify any particular mistakes in the court’s decision, nor did she identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

7.We therefore refuse to grant leave to appeal to the Court of Final Appeal and dismiss the notice of motion filed on 7 July 2023.

The Applicant (Appellant), acting in person