RE SETYO DENO WURYANTARI

CACV 438/2019

[2022] HKCA 217

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 438 OF 2019

(ON APPEAL FROM HCAL 2555 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.  Before the court is an application for leave to appeal to the Court of Final Appeal (“CFA”) against this court’s judgment dated 28 May 2020 ([2020] HKCA 371) (“Judgment”), dismissing the applicant’s appeal from the decision dated 16 September 2019 ([2019] HKCFI 2231) by Deputy High Court Judge K W Lung, refusing her leave to apply for judicial review of the decision dated 29 October 2018 (“Board’s Decision”) of the Torture Claims Appeal Board (“Board”) concerning her non-refoulement claim (“NRF Claim”).

Paper disposal appropriate

2.  Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing. Having considered the material available to us, we agree that a paper disposal is appropriate.

Statutory threshold for leave to appeal to the CFA

3.  Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA from any civil judgment of the CA if 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 CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

4.  In breach of paragraph 1 of the Registrar’s directions dated 8 June 2020, the applicant has not lodged any written submission.

5.  We are therefore left to decide this application on the basis of the notice of motion filed on 5 June 2020, by which the applicant essentially reiterated the majority of the earlier written submission summarised in [13] of the Judgment. This was then followed by contentions that:

(1)  We had failed to address paragraphs 4 to 10 of the applicant’s said earlier written submission which, in gist, contained a complaint of the non-provision of language assistance other than at the screening interview, the Board hearing and the court hearings.

(2)  The lack of language assistance, including not translating the decisions made in respect of the NRF Claim, and not permitting the applicant to submit grounds of judicial review/appeal, in her own language, was an error of law and/or procedure and/or amounted to procedural unfairness and/or a failure to adhere to a high standard of fairness and/or Wednesbury reasonableness.

(3)  Such omission stemmed from a policy to dispose of non-refoulement claims as quickly as possible without regard to procedural fairness.

Discussion

6.  In our view, the applicant has not raised any or any arguable issue for determination by the CFA, whether of great, general or public importance or otherwise.

7.  Nor do we see any scope to grant leave under the “or otherwise” limb.

8.  Paragraphs 4 to 10 of the applicant’s written submission for her appeal against the refusal of leave for judicial review had been summarised in [13] of the Judgment. More particularly, the complaint of lack of language assistance had been canvassed and rejected by this court in [18] and [21]. However, the applicant has not engaged the reasons stated in either paragraph of the Judgment.

9.  As for the bold suggestion that there exists a general public policy to rush through the processing of non-refoulement cases in disregard of procedural fairness, it was made without an iota of supporting evidence. Such accusation is a proforma complaint made by numerous claimants. It comes out of nowhere and is most unjust. To the contrary, enormous amounts of time and manpower have been, and are continuing to be, expended on dealing with non-refoulement claims. Take the present case, which is nothing but typical, as an example, the screening process and the ensuing legal proceedings in respect of the NRF Claim has up to now taken 6 years. This can, on no or no reasonable view, be described as “quick”. Indeed, it is not at all unusual for cases to take even longer. Both the Director of Immigration (“Director”) and the Board have heard evidence from the applicant regarding all aspects of the NRF Claim and explained in detail by the Director’s notice of decision dated 28 February 2018 (17 pages) and the Board’s Decision (24 pages) why they rejected the claim/dismissed the appeal. Thereafter, the applicant (like all other claimants) was given the opportunity to apply for leave for judicial review of the Board’s Decision before a judge of the Court of First Instance and, if leave for judicial review should be refused, to appeal to the CA and finally, if the appeal be dismissed, to seek to appeal to the CFA. Claimants are provided with free legal advice and representation by the Duty Lawyer Service at public expense in completing and submitting the non-refoulement claim form, attending the screening interview and having the Director’s decision explained to them. They are also given free language assistance from qualified interpreters at all interviews and hearings. In short, it cannot possibly be suggested that the mechanism of the two-tier screening process and the two (potentially three) stage legal scrutiny is put in place to achieve a quick disposal of non-refoulement claims at the expense of procedural fairness.

10.  As neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met, we dismiss the notice of motion.