RE ALE MAGAR GAUMAYA

CACV 4/2020

[2021] HKCA 466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 4 OF 2020

(ON APPEAL FROM HCAL NO. 403 of 2018)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  On 12 November 2020, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 23 December 2019 refusing her leave to apply for judicial review.  

2.  On 9 March 2021, the applicant filed a notice of motion together with an affidavit to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant has also lodged a written submission pursuant to the directions given by the Registrar of Civil Appeals. 

3.  Having considered the applicant’s notice of motion, affidavit 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 papers in this application.

4.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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.  Under section 24(5), the Court of Appeal may extend the time for the filing of the notice of motion.

5.  The applicant’s notice of motion is late by almost three months, which is substantial.  The applicant’s affidavit only asked for an extension of time but had not given any explanation for the delay. 

6.  As to the merits of the intended appeal, pursuant to 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.

7.  The notice of motion stated the following by way of grounds of appeal:

(1) The judge erred in finding there was no failure to adhere to the high standard of fairness. At common law minimal standard of procedural fairness is required in the decision-making process, and the decision maker is under a duty to act fairly.

(2) The judge failed to make sufficient enquiry before finalising his decision.  The judge concluded that the applicant’s grounds for leave to apply for judicial review were very broad and vague, without advising or inviting the applicant to make elaboration.

(3) The Board did not take into consideration the risk of harm to the applicant.  Instead, it found the applicant’s account implausible and unreliable, rejecting her case that she came to Hong Kong because of the murder of her husband and concluding that the threats complained of were localised.  The Board did not consider how a person can live in a country under constant threat and fear, especially when one is persecuted on religious grounds.

8.  The applicant further argued in her written submission that:

(1) The judges have not considered her grounds of appeal thoroughly, which is that the judge erred in claiming she could not identify in what respect she considers the Director was unfair or illogical and demonstrate the error in law in the decisions.

(2) The Board’s decision was never translated to her.  It is the basic right of a litigant to understand what was decided against him so that he can make a full review later.  To deprive the litigant of such right is equal to a deprivation of the right to seek further avenues of appeal or review.  The failure of the judge to acknowledge this lack of procedural fairness amounts to an erroneous judgment.

(3) The same extends to the Court of First Instance judgment.  Without knowing the reasons behind the dismissal of her claim, she was deprived of a reasonable opportunity to point out the errors in full.  As a result of the ignorance of procedural fairness, the burden is shifted to the judges to help find the grounds.  It is not true that she can find people to assist her with interpretation/translation and dealing with English documents at all the material times.  This does not mean the courts or the Board do not owe a duty of care to self-represented litigants.

(4) Interpretation service was available at the hearings, but not in the course of lodging appeal against the Decision’s decision, or applying for leave.  She can only understand the facts of her case and the fact that it was refused, but not the reasons, the tests and the country of origin information (“COI”).  She stands by what she said about the balancing exercise, and there is no reason why the COIs supportive of her assertion were completely thrown out.

9.  We are of the view that the grounds of appeal and arguments put forward in the notice of motion and the written submission do not constitute proper grounds to be submitted to the Court of Final Appeal for determination.

10.  Firstly, all the grounds and arguments relate to the claim and circumstances of the applicant.  No question of great general or public importance as required by section 22(1)(b) has been identified.

11.  Secondly, in respect of the first two grounds of appeal in the notice of motion, for reasons stated in [12] to [14] of our judgment, they are unarguable.  As to the third ground of appeal, the judge had correctly held that evaluation of risk of harm is primarily a matter for the Director and the Board, who are the primary decision makers.  The applicant may disagree with their findings, but the Court in judicial review proceedings will only interfere if she can demonstrate there is unlawfulness, irrationality or procedural unfairness in the decision making process.  The judge found there was no reasonably arguable basis to challenge the Board’s finding.  We see no reason to differ.  

12.  Thirdly, the complaints about lack of language assistance in the written submission are new arguments that had not been raised before the judge and in the appeal before us.  It is not permissible for the applicant to raise them in the application for leave to appeal to the Court of Final Appeal.     

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

14.  For the above reasons, the statutory requirements for giving leave to appeal is not met.  As the intended application has no prospect of success, it would be futile to extend the time for applying for leave to appeal to the Court of Final Appeal.  Accordingly, we refuse to extend the time for making the application and dismiss the Notice of Motion.