RE SUMIATI

CAMP 37/2021

[2021] HKCA 1128

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 37 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 642 of 2018)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  On 15 June 2021, this Court handed down our judgment[1] refusing to extend the time for the applicant to appeal against the decision of Deputy High Court Judge Bruno Chan given on 19 August 2020 refusing her leave to apply for judicial review.    

2.  On 22 June 2021, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  She has also put in a written submission on 5 July 2021 to support her application.

3.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Under section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, 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.

6.  The notice of motion stated the following grounds of appeal:

(1)  There is some error in law in the decision of her case.  The applicant totally disagrees with the decisions made by the authorities and the facts relied on to reject her claim.

(2)  The decision making authorities totally relied on web information and COI information, which are not the actual real life situation on the ground.

(3)  The applicant does not wish to go back to her country because her life is still in danger there.

7.  The applicant’s written submission made the following points:

(1)  The applicant was deprived of the right to make full grounds of appeal.  She could not have fully understood the determination without having the determination translated or read to her, and this is unfair.  She had to submit everything in English because the Court would not accept grounds written in her own language.

(2)  The Judges failed to appreciate the significance of the non-refoulement claim, which should be assessed with caution, taking into account the applicant’s vulnerability and disadvantage.  The lack of assistance to the applicant is an error of law, or evidence of procedural unfairness, or a failure to adhere to the high standard of fairness.  

(3)  Dismissing the applicant’s complaint for lack of language assistance is presuming that all non-refoulement claimants are the same and not taking into account their unique circumstances.  This is Wednesbury unreasonableness.  Until now, the applicant has not been provided with proper language assistance in understanding the judgments.  There is no solid evidence that she has been able to fully understand the judgment with the help from her friend.

(4)   It cannot be said the assistance cannot be of any use when it was not provided in the first place, and if a litigant has not been informed fully of his rights and be given the opportunity to be heard with such assistance.

8.  We are of the view that the grounds and arguments advanced by the applicant do not constitute proper grounds for granting leave to appeal to the Court of Final Appeal.  They all relate to the circumstances of the applicant, and do not involve any question of great general or public importance, as required by section 22(1)(b).  Further, for the reasons we gave at [19] and [20] of our judgment, the grounds and arguments have no merits.    

9.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.  As the statutory requirements for giving leave to appeal are not met, we refuse the application for leave to appeal to the Court of Final Appeal.  Accordingly, we dismiss the notice of motion.