RE SITI NURUSSAADAH AND ANOTHER

CACV 337/2018

[2019] HKCA 672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 337 OF 2018

(ON APPEAL FROM HCAL 681/2017)

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J U D G M E N T

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

1.  On 1 February 2019, this court (Lam VP, Cheung and Barma JJA) handed down a judgment dismissing the applicants’ appeal against the decision of Deputy High Court Judge Josiah Lam (“the judge”) on 16 July 2018 refusing leave to the applicants to apply for judicial review. The applicants had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing their appeal from a decision of the Director of Immigration rejecting their non‑refoulement claims.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicants subsequently applied, by a Notice of Motion filed on 5 March 2019, for leave to appeal to the Court of Final Appeal.  The applicants stated in their Notice of Motion that:

(1) the judges erred in determining that the lack of language assistance is justified;

(2) the applicants should receive free legal assistance for their claims based on BOR 2 risk; and

(3) their cases should be remitted to the Director for reassessment after the applicants have received further legal advice.

4.  In compliance with the directions of the court, the applicants lodged a written submission in support of their application on 19 March 2019.  In their written submission, the applicants reiterated the matters raised in the Notice of Motion.

5.  Having considered the applicants’ Notice of Motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicants’ application on the basis of their Notice of Motion and written submission.

6.  The matters stated by the applicants in their Notice of Motion do not constitute grounds for granting leave to the Court of Final Appeal.  The applicants have failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters they have raised in the Notice of Motion and written submission.  

7.  We have dealt with the issue of legal representation at [16] of our judgment.  In the appeal before us, the only complaint regarding language assistance was the lack of a translated copy of the non-refoulement claim form.  We have dealt with this issue at [17] of our judgment.  In our view, the grounds in the Notice of Motion are plainly not reasonably arguable before the Court of Final Appeal.

8.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

9.  For these reasons, the Notice of Motion filed on 5 March 2019 is dismissed.