LAMA RINA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 140 /2020

[2022] HKCA 1759

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 140 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1830 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 23 April 2021 ([2021] HKCA 547). The Court of Appeal refused to grant leave to appeal out of time against the decision of Deputy High Court Judge K W Lung dated 19 September 2019 refusing to grant extension of time for the applicant to seek leave to apply for judicial review concerning her non-refoulement claim^[1].

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 20 June 2022 that the Notice of Motion shall be determined on paper without an oral hearing.  The applicant lodged her written submissions on 4 July 2022.  Having considered her written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Nepal.  She arrived in Hong Kong on 27 June 2015 as a visitor and subsequently overstayed.  She was arrested on 20 July 2015.  She raised a non‑refoulement claim on 14 August 2015 on the basis that she would be harmed or killed by people in her village if she is to be returned there as she was accused of witchcraft.

4.  The applicant took out a summons in the court below to seek an extension of time to appeal against the decision of the judge.  It was refused by the judge on 31 July 2020^[2].

5.  On 21 August 2020, the applicant filed a renewed application for leave to appeal out of time with the Court of Appeal.  The application was dismissed by the Court of Appeal on 23 April 2021 as she failed to show a reasonable prospect of success in her intended appeal.

Grounds of appeal

6.  The grounds of appeal in the Notice of Motion filed on 20 June 2022 may be summarised as follows:

(1)  The judges erred in determining that the judge had not failed to appreciate the significance of the applicant’s non-refoulement claim.

(2)  The lack of assistance provided to the applicant is an error of law or procedure, evidence of procedural unfairness or failure to adhere to a high standard of fairness.

(3)  It is unfair to expect an uneducated person to know the law of a foreign country.  Reasonable assistance was not provided to the applicant.

(4)  The judge refused to accept the applicant’s grounds and just relied on the previous decision of the Board.

(5)  The applicant was not able to specifically point out the legal errors without obtaining interpretation or translation of the judgments and without legal representation.

(6)  The authorities have not made reasonable arrangements to enable the applicant to understand the judgment so she was deprived of the right to seek further avenues of appeal.

(7)  The judgment was lacking in evidential consideration of issues raised in the court.

7.  The applicant’s contentions in her written submissions may be summarised as follows:

(1)  The judgment of the judges does not make logical sense at all.

(2)  The judges have not considered her grounds of appeal thoroughly.

(3)  She seeks reconsideration of her case based on unfairness and unreasonableness for the lack of language and legal assistance.

Analysis and disposition

8.  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. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (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.  In the Notice of Motion dated 20 June 2022, the applicant stated that she only received the decision on that day.  She also mentioned that she was detained by the police and was put in jail so she did not know that her summons for extension of time has been refused.  However, she has not provided particulars as to the date and duration of her detention.

11.  The court had sent a notice of handing down of judgment on 20 April 2021 notifying the applicant the date of handing down and that the judgment would be uploaded to the Judiciary website within the same day of handing down.  The judgment was also sent to the applicant’s address by post on 23 April 2021.  It is noted that the applicant filed a notice of change of address on 22 June 2022.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his 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).  In the present case, the applicant’s explanation cannot justify her substantial delay.  There is no good ground for the Court of Appeal to grant an extension of time for the applicant to file her Notice of Motion.

12.  In any event, the Court of Appeal had duly explained the reasons for refusing the applicant’s grounds in the judgment dated 23 April 2021 and the applicant failed to demonstrate that the Court of Appeal was wrong in the determination.

13.  Moreover, she has 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).

14.  For the above reasons, we dismiss the Notice of Motion filed on 20 June 2022 for leave to appeal to the Court of Final Appeal.

[1] [2019] HKCFI 2212

[2] [2020] HKCFI 1772