WIWIN-SETYOWATI-SAMIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 79/2020

[2021] HKCA 702

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 79 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1070 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 (Kwan VP and Chu JA) handed down on 29 January 2021 ([2021] HKCA 98). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 4 December 2019 ([2019] HKCFI 2457) dismissing the application for extension of time to seek judicial review concerning her non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed on 25 March 2021 that the applicant should lodge written submissions in support of her notice of motion on or before 7 April 2021 and that the notice of motion shall be determined on paper only without an oral hearing upon compliance with the direction or the expiry of the time for the compliance of the direction.  The applicant did not lodge any written submission as directed.  As the time for compliance with the said directions has expired, and, having considered the papers, it is appropriate to determine this application on paper.

3.  The applicant is a national of Indonesia.  She last arrived in Hong Kong on 20 August 2011 with permission to work as a foreign domestic helper.  Her employment contract was prematurely terminated on 29 February 2012.  She overstayed and surrendered to the Immigration Department on 30 July 2015.  She raised a non-refoulement claim on 11 July 2016.  Her claim was made on the basis that she would be harmed or killed by her former boyfriend in Indonesia for having a relationship with another man in Hong Kong.

4.  The applicant took out a summons in the court below to seek leave to appeal against the decision of the judge.  It was refused by the judge on 24 June 2020. 

5.  She renewed her application to the Court of Appeal for leave to appeal on 3 July 2020.  Her application was dismissed by the Court of Appeal on 29 January 2021 as she failed to show any prospect of success in her intended appeal.

Grounds of appeal

6.  The applicant stated the following grounds of appeal in the Notice of Motion filed out of time on 24 March 2021:

(1)  The judges erred in determining that the judge had not failed to appreciate the significance of the applicant’s claim.  The lack of assistance provided to her 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 her vulnerability and disadvantage;

(2)  The applicant did not receive any letter of the court dated 29 September 2019 by which she was required to submit further submission.  She also did not receive any decision and order of 29 January 2021.  She was just informed by the Magistrate court that the decision has been issued and she was shocked that she did not receive any letter from the court;

(3)  She did not change her address and is still living at the same address. She does not know why the letter was not delivered to her mail box;

(4)  She was deprived of the right to make full grounds for her appeal. By not having the determination translated or read back to her, she could not have understood the determination to the fullest and this is unfair.  She had to submit everything in English because the Court would not accept grounds written in applicant’s own language;

(5)  The applicant had to ask for help without having the ability to verify if everything is correct and true.  The fact that oral hearings were arranged with interpreters meant that the court recognizes the significance of language assistance.  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 deprivation of the right of a litigant to seek further avenues of appeal;

(6)  The authorities, despite knowing the applicant’s language incapability, have not made reasonable arrangements to enable her to understand the contents of the judgments and thereby deprived her of the right to seek further avenue of appeal.  This is a wrongful exercise of case management power and this should be looked into carefully;

(7)  The lack of procedural unfairness and such discrimination against non-refoulement claimants are unacceptable. Even though the applicant admitted that she had a friend to help her prepare Form 86 and affirmation for judicial review, it does not mean that she can always find someone to assist her with interpretation/translation and to deal with English documents;

(8)  A judgment that made with the lack of evidential consideration of the issues raised in court should be deemed an erroneous judgment;

(9)  If a litigant has not been informed fully of his rights and 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.

7.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), 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.  The Court of Appeal may extend the time for making the application under section 24(5).

8.  Good grounds have to be shown by the applicant for the court to grant him an extension of time.  The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

9.  Section 22(1)(b) of the Ordinance 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.

10.  The applicant explained in her affirmation that she did not receive the decision of the Court of Appeal.  The court sent the judgment and order to the applicant by post to the address provided by the applicant on 29 January 2021.  The mail was returned by the post office with the remark of “incomplete address/no such address”.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his or her attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439 at §15). 

11.  In any event, the applicant’s grounds are not reasonably arguable.  The Court of Appeal is well justified to refuse her application as she failed to identify any error in the judge’s refusal to grant her extension of time while she confirmed in her affirmation that she managed to understand the decision(s) (of the Director of Immigration and the Torture Claims Appeal Board) on the day of the hearing before the judge.  Moreover, interpreter services were provided to the applicant at the hearings at every stage and at the time when the applicant was assisted by the Duty Lawyer.  The high standard of fairness required by law would not entail interpretation service being made available all the time as the applicant may desire: Re Gurung Sagar [2019] HKCA 658 at §12. For these reasons, her grounds pertaining to the lack of language assistance and the alleged consequential procedural unfairness are unmeritorious. 

12.  As for the ground on the alleged lack of evidential consideration, the applicant failed to identify the issues allegedly ignored by the court so this ground is also devoid of merit.

13.  Furthermore, the applicant 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).  We would not have exercised our discretion to grant leave to appeal to the Court of Final Appeal.

14.  For the above reasons, we refuse to extend time to the applicant to lodge the Notice of Motion for leave to appeal to the Court of Final Appeal out of time and dismiss the application filed on 24 March 2021.