BEO JOY EPALAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 433/2022, [2023] HKCA 593

On Appeal From [2022] HKCFI 3265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 433 OF 2022

(ON APPEAL FROM HCAL NO 2498 OF 2018)

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J U D G M E N T

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

1.  On 8 March 2023, this Court gave its judgment (“the CA Judgment”) dismissing the Applicant’s appeal against the order of Deputy High Court Judge K W Lung dated 25 October 2022 refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 8 October 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration dated 27 February 2018 rejecting her non-refoulement claim.

2.  By Notice of Motion dated 20 March 2023, the Applicant applies for leave to appeal the CA Judgment to the Court of Final Appeal. In the Notion of Motion, the Applicant states as follows:

“I would like to inform to Court of Final Appeal. There some error in law my decision maker authorities. I am disagree with decision made by the Director of Immigration as well as decision made by the Adjudicator of Torture Claim Appeal Board. They were totally relied on news sources which are officially not recognized.” [sic]

3.  In her written submissions dated 31 March 2023, the Applicant complains about the lack of (i) interpretation service, and (ii) sound judgment and fairness throughout the non-refoulement claim process. The Applicant also contends that the court and the authorities were negligent and failed to “perform a standard duty of care that … specifically targeted … non-refoulement claimant like [her]”.

4.  Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter 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.

5.  The Applicant’s complaint about the lack of interpretation service is a new specific ground of complaint which was not previously raised by her in the original application for leave to apply for judicial review, or in her appeal to the Court of Appeal. It is not open to the Applicant to raise a fresh ground of complaint which is fact sensitive for the first time in her application for leave to appeal to the Court of Final Appeal. Further, it is well established that a non-refoulement claimant is not entitled to free interpretation service at all times that he/she may desire. Her other complaints are merely bare and general allegations which cannot constitute any valid ground of appeal.

6.  No question of great general or public importance involved in the proposed appeal is identified in the Notice of Motion. We are unable to see any such question being involved in the proposed appeal. We are satisfied that the intended appeal has no merits and no reasonable prospect of success. There is also no basis to grant leave to appeal on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

7.  Accordingly, the application for leave to appeal is refused and the Notice of Motion is dismissed.