RASOLONIRINA MARIE YVON ALJYMI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 33/2023, [2023] HKCA 779

On An Intended Appeal From [2021] HKCFI 2458 &

[2021] HKCFI 3183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 33 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 815 OF 2021)

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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 11 May 2023, this Court gave its judgment (“the CA Judgment”) dismissing the Applicant’s application for leave to appeal against the order of Deputy High Court Judge K W Lung dated 9 November 2022 refusing to grant him an extension of time to appeal against an earlier order of the Judge dated 26 August 2021 refusing to grant leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 10 May 2021, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration dated 13 November 2020 rejecting the Applicant’s non-refoulement claim.

3.  By Notice of Motion dated 6 June 2023, the Applicant applies for leave to appeal the CA Judgment to the Court of Final Appeal. Attached to the Notice of Motion is a document titled “THE AFFIRMATIN OF RASOLONIRINA MARIE YVON ALJYMI” dated 29 May 2023. In that document, the Applicant states or alleges, amongst other things, that he received no help from anyone, or any legal or language assistance, in relation to his appeal; he does not agree with the decisions of the Director and the Board and believes that his case was determined unfairly; he was deprived of his basic right to be informed of his legal rights or other information; the decision of the Board has never been read or translated to him in his mother tongue; and he was not allowed to attend any oral hearing in the High Court or Court of Appeal. He also requests for an oral hearing “in relation to [his] non-refoulement claims”.

4.  In his written submissions dated 7 June 2023, the Applicant repeats his request for an official oral hearing “in … relation to [his] non-refoulement claims”. Notwithstanding this request, having considered the papers and materials before us, we see no good reason to depart from the Court’s usual practice to determine the present application on paper without an oral hearing.

5.  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.

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.

7.  In neither the Notice of Motion nor his written submissions has the Applicant identified any error in the CA Judgment or any proper ground of appeal against the CA Judgment. The various complaints now raised by the Applicant in his Notice of Motion and/or written submissions are general complaints without particulars and/or new complaints which were not raised in his original application for leave to apply for judicial review, or in his application for extension of time to appeal made to this Court. There is no basis to grant him leave to appeal in respect of such complaints.

8.  We would add that the Court of First Instance and the Court of Appeal were entitled, in the exercise of their discretion, to deal with the leave application and the application for extension of time to appeal on paper without holding any oral hearing. In relation to the complaint about lack of language assistance, the Court notes that the Applicant’s documents filed in court are all written in English of a reasonable standard. This indicates that the Applicant either can read and write in English, or has language assistance of his own. In so far as the Applicant complains about lack of legal assistance, it is well established that a non-refoulement claimants is not entitled to free legal assistance at all stages of the assessment process or the subsequent judicial process. He can apply for legal aid in court proceedings, but whether legal aid is granted to the Applicant is a matter to be determined by the Director of Legal Aid, who will take into account the merits of his application. Overall, we are satisfied that the intended appeal has no merits and no reasonable prospect of success.

9.  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.

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