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

CAMP 237/2022, [2023] HKCA 1050

On appeal from [2022] HKCFI 469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 237 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2560 OF 2018)

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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 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 1 February 2023 ([2023] HKCA 112). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 28 February 2022 dismissing the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning the applicant’s 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 23 February 2023. Having considered her written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Indonesia. She had been employed as a foreign domestic helper in Hong Kong since 2006 but her employment was prematurely terminated. She did not depart from Hong Kong and was subsequently arrested for overstaying. On 6 March 2014, she filed a non-refoulement claim on the basis that she would be harmed or killed by her husband.

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 the judge on 14 June 2022[1].

5.  On 8 July 2022, the applicant filed a renewed application for extension of time to appeal. The application was dismissed by the Court of Appeal on 1 February 2023 as the applicant failed to show any prospect of success in her intended appeal.

Grounds of appeal

6.  The applicant stated the following grounds in the Notice of Motion filed on 9 February 2023:

(1)  The court and the authorities have been negligent and failed to perform a standard duty of care that is specifically targeted at non-refoulement claimants like the applicant;

(2)  She is not the only claimant who does not understand English and yet the court procedures have been discriminatory and put claimants like her at a disadvantage.

7.  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 a litigant should be deprived of the basic right to understand the content of the process or judgment;

(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.

Analysis and disposition

8.  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.

9.  The applicant has not raised the grounds or submissions on the lack of assistance concerning her BOR 2 risk claim or lack of language assistance in her previous application. It is not open to her to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings.

10.  In any event, contrary to the applicant’s assertion, she had been assisted by her legal representative in the screening interview before the immigration officer when her non-refoulement claim was assessed on all applicable grounds including BOR 2 risk. Interpreter services were also provided at hearings at every stage and at the time when the applicant was assisted by duty lawyer. The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as she may desire (Re Gurung Sagar [2019] HKCA 658 at §12).

11.  The rest of her grounds and submissions are just bare assertions without particulars and evidence in support.

12.  The applicant 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).

13.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 9 February 2023.