RE PADACO ROSEMARIE ODLOS

CACV 342/2019

[2020] HKCA 446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 342 OF 2019

(ON APPEAL FROM HCAL NO. 1612 OF 2018)

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J U D G M E N T

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

1.  By a judgment dated 29 November 2019 ([2019] HKCA 1319) (“the Judgment”), this Court (Hon Au JA and ST Poon J) dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 16 July 2019 ([2019] HKCFI 1774) refusing her leave to apply for judicial review (“the Deputy Judge’s Decision”).

2.  The intended judicial review is against the decisions of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office dated 9 August 2018 (“the Board’s Decision”) and the decision of the Director of Immigration dated 25 August 2017 rejecting the applicant’s non-refoulement claim.  

3.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.

4.  By a Notice of Motion dated 2 December 2019, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

5.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, leave to appeal to the Court of Final Appeal may be granted 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 Court of Final Appeal for decision.

6.  In the Notice of Motion, the applicant set out the following grounds in summary:

(1)  The court erred in determining that the Deputy Judge had not failed to appreciate the significance of her non-refoulement claim. The lack of assistance is an error of law or procedure, or evidence of procedural unfairness or failure to adhere to the high standard of fairness;

(2)  The court failed to address the issues (4)-(10) in her skeleton submissions dated 19 October 2019;

(3)  The Deputy Judge failed to address the ground of lack of language assistance;

(4)  Interpretation service should be made available to non-refoulement applicants.  She did not have interpretation service in understanding the Judgment.

(5)  The court cannot dismiss her claim on the basis of not including any draft grounds of appeal.

(6)  The Board’s Decision was not translated to her.

(7)  She also requested an oral hearing for this application.

7.  On 3 December 2019, Master Au-Yeung directed that, inter alia, the applicant should lodge her written submissions on or before 16 December 2019.  The applicant filed her written submissions as directed.  In the written submissions, the applicant basically repeated the grounds she had stated in the Notice of Motion.  In gist, the applicant argued that there was procedural unfairness, i.e. not affording her with language assistance to enable her to fully understand the Judgment, the Deputy Judge’s Decision and the Board’s Decision.

8.  We have duly considered the applicant’s Notice of Motion and written submissions.  Pursuant to paragraph 3 of Practice Direction 2.1, we did not find any exceptional circumstance in this application to deviate from the usual practice and thus proceeded to consider this application on papers without any oral hearing.

9.  In our view, this application is devoid of merits.

10.  First, it is wrong to say that this court failed to consider issues (4)-(10) of her skeleton submissions filed on 19 October 2019.  Issues (4)-(10) relate to her arguments on lack of language and legal assistance, which had been summarized and addressed at [13] and [21]-[24] of the Judgment. 

11.  Second, the applicant was given an oral hearing before this court on 18 November 2019.  During the hearing, she was assisted by an interpreter.  She confirmed that she had nothing to add.  See [14] of the Judgment.

12.  Third, as it is clear from her Notice of Motion and written submissions, the core of her arguments is essentially the same as that advanced before this court, i.e. the lack of language and legal assistance.  We have addressed these grounds in detail at [21]-[24] of the Judgment.  Other than repeating her arguments, the applicant failed to identify with any particularities or errors in the Judgment.  These are not viable grounds of appeal. 

13.  In any event, the applicant failed to identify in the Notice of Motion or the written submissions any question of great general or public importance that ought to be submitted to the Court of Final Appeal for decision.  Nor do we see any basis to grant leave on the “otherwise” limb.

14.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484) are therefore not met.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss her Notice of Motion.