CELIS LEONORA SACOR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 351/2022

[2023] HKCA 620

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 351 OF 2022

(ON APPEAL FROM HCAL NO 2183 OF 2018)

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J U D G M E N T

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Hon Fung J (giving the Judgment of the Court):

Background

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 30 January 2023 ([2023] HKCA 22).  The Court of Appeal dismissed the applicant’s appeal against the decision of Deputy High Court Judge K W Lung dated 11 August 2022 ([2022] HKCFI 2492)  refusing to grant leave to apply for judicial review against the decision of the Torture Claims Appeal 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 written submissions on 2 March 2023.  Having considered the written submissions and the papers, it is considered appropriate to determine this application on paper.

Grounds of Appeal

3.  In the Notice of Motion filed on 16 February 2023, the applicant stated that the judgments are not good for her and she wants to go to the Court of Final Appeal.

4.  Her written submissions may be summarized as follows:

(1)  There is threat to her life in her motherland.  It is not possible for her to return;

(2)  The adjudicator did not give her a lawyer and an interpreter.  All her statements were not translated properly.

Analysis

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 alleged improprieties of the adjudicator stated in the applicant’s written submissions were not submitted in the leave application before the Court of First Instance or in the appeal before the Court of Appeal.  It is not open to the applicant to put forward this ground for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings.

7.  In any event, contrary to her submissions, the applicant was provided with an interpreter at the hearing before the adjudicator[1]. As for the lack of legal representation, the Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings[2].  The applicant already had the benefit of legal representation in presenting her case to the Director of Immigration.

8.  The rest of her grounds and submissions are not supported by evidence.  She failed to show that the Court of Appeal was wrong in rejecting her appeal.  She also failed to 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).

9.  For the above reasons, the Notice of Motion filed on 16 February 2023 should be dismissed.