RE SHERPA YANGJI

CAMP 173/2019

[2021] HKCA 1217

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 173 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 902/2018)

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J U D G M E N T

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

1.  On 23 March 2021, this court (Poon CJHC and Barma JA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Josiah Lam (“the judge”) on 17 April 2019 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal from the decision of the Director of Immigration rejecting her non‑refoulement claim.

2.  The facts and issues in the application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion filed on 13 April 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1. The Judges have erred in determining that the Judge had not failed to appreciate the significance of my non-refoulement claim. The lack of assistance provided to me is an error of law or procedure, or evidence of procedural unfairness, or failure to adhere to a high standard of fairness. This is because non-refoulement claims are life and limb cases and should be assessed with caution, considering my vulnerability and disadvantage.

2. I reiterate the authorities, despite knowing of my language incapability, have not made reasonable arrangements to enable me to understand the content of the judgments and thereby depriving me of the right to seek further avenue of appeal. This is a wrongful exercise of case management power and I verily believe this should be looked into carefully as a case management power should extend all the way to how a judgment is delivered.

3. I do not understand the judgment completely as I was not given a translation of such. I would request for the judgment to be read to me or translated to me and to give me reasonable time frame to respond.

4. I was deprived of the right to make full grounds for appeal. By not having the Determination translated or read back to me, I could not have understood the Determination to the fullest and is unfair to me. I had to submit everything in English because the Court would not accept grounds written in my own language, otherwise I would have done that.

5. Instead, I had to ask for help without having the ability to verify if everything is correct and true. The fact that oral hearings and hearings were arranged with interpreters mean that the Court recognizes the significance of language assistance, and therefore such assistance should extend to understanding the judgment. This is contrary to the high standard of fairness required by law if this results in a deprivation of the right of a litigant to seek further avenues of appeal.

6. I stand by my grounds about the lack of procedural unfairness and such discrimination against non-refoulement claimants is unacceptable. Even in the Court I admitted I had a friend to help me to prepare Form 86 and the affirmation for judicial review. But it does not mean that apparently, I always can find someone to assist me with interpretation/translation and to deal with English documents. As a result, I am making this affirmation to the best of my knowledge only.

7. I asked a friend to translate the content to me, but I was only given a gist, hence I cannot reply to every accusation or observation made by Court. And the help by a friend is not professional. Where I do not raise an issue that was mentioned in the Judgment, it does not mean that I agree.

8. A judgment that has been made with the lack of evidential consideration of issues raised in Court should be deemed an erred judgment.

9. If a litigant has not been informed fully of his rights and be given the opportunity to be heard with such assistance, then it cannot be said that the assistance cannot be of any use as it was not even granted in the first place.

10. I seek a reconsideration of the case with an oral hearing arranged.”

4.  The applicant lodged a written submission in support of the application on 17 May 2021.  In the written submission, the applicant reiterated the matters raised in the Notice of Motion.  He also complained that there was a lack of legal assistance in his appeal to the Board and the application for leave for judicial review.

5.  Having considered the applicant’s Notice of Motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

6.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters she has raised.  

7.  The applicant advanced a number of grounds based on lack of language assistance which are similar to the complaint against the lack of language assistance advanced in the appeal before us.  As we noted in [18] of our judgment, the applicant was able to file court documents and identify errors allegedly committed by the judge.  There was nothing to suggest that she suffered any real prejudice from the alleged lack of language assistance.  The same observation applies to her application for leave to appeal to the Court of Final Appeal and we are therefore not satisfied that these grounds are reasonably arguable before the Court of Final Appeal.

8.  As for the complaint that the applicant did not receive legal assistance, as we explained in [17] of our judgment, a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings.  Representation at later stages is merits based and this is not procedurally unfair.  This ground is also not reasonably arguable before the Court of Final Appeal. 

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

10.  For these reasons, the Notice of Motion dated 13 April 2021 is dismissed.