SUANINGSIH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 289/2021

[2022] HKCA 1787

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 289 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2971 OF 2018)

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J U D G M E N T

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Hon Kwan Ag CJHC (giving the Judgment of the Court):

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 (Kwan VP and Chu JA)  handed down on 18 March 2022 ([2022] HKCA 390). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 16 June 2020 refusing to grant leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning her non-refoulement claim[1].

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 18 July 2022 that the applicant shall lodge written submissions on or before 1 August 2022.  It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction.  The applicant did not lodge any written submissions by the prescribed deadline.  Having considered the papers of this case, it is considered appropriate to determine this application on paper.

3.  The applicant is a national of Indonesia.  She entered Hong Kong legally on 1 November 2013 as a domestic helper and was arrested for overstaying on 28 October 2014.  She submitted a non-refoulement claim form on 22 December 2017 on the basis she would be killed by her father and brother in Indonesia as she gave birth to an illegitimate child with a Nepalese man.

4.  She took out a summons in the court below to seek an extension of time to appeal against the decision of the judge.  It was refused by Deputy High Court Judge P Li on 13 July 2021[2]. 

5.  On 27 July 2021, the applicant filed a renewed application for leave to appeal out of time.  The application was dismissed by the Court of Appeal on 18 March 2022 as the applicant failed to show any prospect of success in her intended appeal.

Grounds of appeal

6.  The grounds of appeal in the Notice of Motion may be summarised as follows:

(1)  The applicant was not given language assistance despite the fact that the authorities were well aware that English is not her first language and she cannot communicate without a translator or interpreter. The process is unfair and unjust.  It is a question of great general or public importance, particularly for non-refoulement claimants, that they are given equal treatment as the rest of the population without having actual regard to the unique circumstances of their situation.

(2)  Despite the complaint about the lack of language assistance, the court continues to issue directions in English and has not provided further language assistance.  Further, the applicant was deprived of the right to a fair trial with no oral hearing made available to her.  Such miscarriage of justice should not be taken lightly and is a solid threat to a fair judicial system.

(3)  The interpretation services provided throughout the case seemed to be arranged for the judges to understand the applicant rather than to facilitate the applicant’s understanding of her own case.

(4)  With the lack of assistance, the applicant was deprived of the ability to lodge an appeal within the required timeframe and her applications were dismissed accordingly.  This is unjust and discriminatory.

(5)  The Court of Appeal has been wrong in dismissing her appeal.

Analysis and disposition

7.  Under section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (Cap 484)  (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5)  of the Ordinance (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

8.  Section 22(1)(b)  of the Ordinance 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.

9.  The applicant was late for nearly 13 weeks in filing the Notice of Motion.  She explained in her affirmation that she did not receive any decision.  The court had sent the judgment to the applicant’s address by post on the day when the judgment was handed down.  It is noted that the applicant’s address stated in her present application is different from the one stated in her previous application but she did not file any notice of change of address with the court.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to her attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at [15]).  Under these circumstances, there is no good ground for the court to grant extension of time for the applicant to file her Notice of Motion. 

10.  In any event, the applicant’s grounds pertaining to the lack of language assistance are without merits.  In the present case, interpreter services were provided at hearings at every stage and at the time when the applicant was assisted by Duty Lawyer.  This reflected that some language assistance has been provided to the non-refoulement claimants in light of their special needs.  The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he or she may desire (Re Gurung Sagar [2019] HKCA 658 at §12). The applicant’s complaint that the interpretation seemed to be arranged for the judges to understand the applicant rather than for facilitating the applicant’s understanding of her own case is not supported by any evidence or elaboration.

11.  In addition, all court documents including the summonses and affirmations filed by the applicant were written in English.  She was also able to lodge written submissions according to the court’s directions.  This indicates that either the applicant herself is conversant with the English language or she has access to language assistance of her own if needed. 

12.  The Court of Appeal is entitled to determine an interlocutory application and/or an application for leave to appeal before it without a hearing on the basis of written submissions only pursuant to Order 59 rule 14A(1)  and Order 59 rule 2A(5)(a)  of the Rules of the High Court (Cap 4A).  The applicant does not have any reasonably arguable ground to show that the Court of Appeal’s decision is wrong or unjust.  She also failed to demonstrate there is 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).

13.  We therefore refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 18 July 2022.