RE BIMALA DANGOL MAHARJAN

CACV 7/2018

[2018] HKCA 313

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 7 OF 2018

(ON APPEAL FROM HCAL NO 42 OF 2017)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  This Court (Lam VP and Barma JA) handed down the judgment dismissing the appeal on 24 April 2018.

2.  On 30 April 2018, the applicant issued a Notice of Motion seeking leave to appeal to the Court of Final Appeal.  In the notice, she said she was not aware of the requirement to lodge skeleton argument and she thought she would explain herself at the oral hearing.

3.  The Court had given her an oral hearing on 20 April 2018.  However, she did not attend the hearing and up to now she offered no explanation for her absence from that hearing.  The Court therefore proceeded to deal with her appeal based on the materials placed before us.

4.  Pursuant to Practice Direction 2.1, the applicant lodged submissions (written in English) in support of her application on 23 May 2018.  Two documents were lodged: one by way of submissions for the Notice of Motion; one by way of skeleton argument “for hearing scheduled on 24 April 2018”.

5.  There was no hearing scheduled on 24 April 2018.  The oral hearing of the appeal was scheduled and took place on 20 April 2018.  She had been notified of that hearing by a notice of 15 February 2018. As mentioned, she did not attend the hearing.

6.  She alleged she did not have the necessary assistance to prepare the written submissions in English and she failed to understand the requirement for lodging skeleton submissions.  In addition to Practice Direction 4.1, the Registrar of Civil Appeals had given her express detailed directions on lodging skeleton submissions on 5 February 2018.  We do not accept this assertion as she did not appear to have difficulty to lodge her Notice of Appeal, her Notice of Motion and various documents (all prepared in English) within time.  She also had no difficulty in complying with the directions to lodge written submissions in support of her Notice of Motion.  

7.  Having read her written submissions lodged on 23 May 2018, we are of the view that the Notice of Motion can be processed on the papers without any oral hearing.

8.  In the judgment of 24 April 2018, the Court assessed the merits of the appeal by reference to the facts of this case.  This was a case and fact sensitive assessment.  For the reasons given, the appeal was wholly devoid of merit.  There is nothing in the written submissions of 23 May 2018 which can take the applicant’s case further.

9.  The relevant criteria for granting leave to appeal to the Court of Final Appeal are set out in Section 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], 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.  Having read the documents, we cannot find any basis for holding that leave to appeal should be granted pursuant to Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.  There is no question of great general or public importance in the intended appeal.  Nor is there any reason for leave to be granted on the “otherwise” limb.

CACV 7/2018

[2018] HKCA 221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 7 OF 2018

(ON APPEAL FROM HCAL NO 42 OF 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock on 22 December 2017­ refusing leave to the applicant to apply for judicial review. The applicant allegedly came from Nepal to Hong Kong illegally by boat in early October 2010. She was arrested by the police on 4 October 2010. On 8 October 2010, she lodged a non-refoulement claim. The claims were based on the threat to her life from her husband. According to the applicant, she married her husband in 1994 and he had been abusing her frequently.

2.  The Director decided against the claims on 12 August 2015.  The decision covered BOR 3 risk, persecution risk and torture risk.  By a Further Decision of 24 October 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against her.

3.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 15 November 2016, the Board dismissed the appeals on 20 January 2017 (“Board’s Decision”).

4.  The intended judicial review was in respect of the Board’s Decision only.  The Form 86 filed by the applicant on 16 February 2017 contained the following grounds:

(1)  The Board had unlawfully fettered its discretion “by refusing the applicant’s appeals on the grounds that they did not satisfy the requirement”;

(2)  Procedural unfairness at the Board hearing;

(3)  The Board’s decision was unreasonable, irrational or was a result of procedural errors or unfairness;

(4)  The Board failed to afford greater care and duty towards the applicant who represented herself in the hearing.

5.  In her affirmation of 16 February 2017, she stated that the Board relied on news that was not officially recognized or was simply hearsay.  She also claimed to have limited English proficiency.  She did not have the money to hire an interpreter.  There was delay[1] in providing the hearing bundle to her.  The bundle was in English and there was no translation.  She did not have enough time to prepare for the hearing before the Board.

6.  After reviewing the materials carefully, the judge refused to grant leave. After summarizing the facts and background of the case and giving due consideration to the decisions of the Board, she gave the following reasons for refusing leave at [9] to [13] of the CALL-1 Form of 22 December 2017:

“ 9. I have considered, whether the adjudicator has made any error of law, or handled the matter or not complied with a high standard of fairness as required by the law. I find no issues. I have also considered whether his decision satisfied the enhanced Wednesbury test by means of a rigourous examination and anxious scrutiny of his decision-making process and the reasons by which he reached his decision.

10. The first ground the applicant relies on was that she was ill-prepared for the hearing. She only received the hearing bundle six days before the hearing and it was in English. She did not have the money to hire an interpreter to read it to her. As a result, she was confused as to what would happen during the hearing. However, there is no indication in the decision that the applicant complained to the adjudicator that she was ill-prepared or needed help with any translation. There was an interpreter provided at the hearing to assist the applicant. I am not satisfied there is any procedural unfairness. There is no merit in this ground.

11. The second ground the applicant relies on was that she feels aggrieved her credibility was questioned when she answered all questions honestly. There is no merit in this ground because the adjudicator did not doubt her credibility; he made no finding she was not credible.

12. The last ground relates to the adjudicator relying on hearsay/outdated/obscure Country of Origin material and authorities. No particulars have been provided and the applicant has simply failed to show and identify what material offends. There is no merit in this ground.

13. In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, para 14-17.  I refuse leave for judicial review.”

7.  In the notice of appeal of 5 January 2018, the applicant contended that the judge had failed to take into account the significance of the lack of language assistance.  She further sought leave to submit further skeleton arguments on grounds that are not contained in the Form 86.

8.  The applicant agreed by a letter of 5 January 2018 that the appeal can be heard by two judges.

9.  The applicant did not comply with the direction to lodge skeleton argument despite the express direction by the Registrar of Civil Appeals on 5 February 2018.  

10.  We heard the appeal on 20 April 2018. Notwithstanding notice of hearing was sent to the applicant on 15 February 2018, the applicant failed to attend.

11.  We did not find it appropriate to delay the matter further and decided to proceed with the appeal on the basis of the materials already before us. 

12.  Having considered the submissions of the applicant in light of the materials before us, we agree with the judge’s observations.

13.  The applicant complained that the Board relied on news that was not officially recognized or was simply hearsay.  The applicant did not provide any particulars about the alleged news that was improperly taken into consideration by the Board.   The judge was correct in rejecting this ground.

14.  The applicant also complained about the lack of language assistance in the proceedings in the Board.  An interpreter had in fact been provided to her at the hearing before the Board.  In any event, the applicant was able to proceed in English and all her documents were written in English.  This ground also fails.

15.  Lastly, the applicant did not challenge the Board’s finding that the abuse from her husband was a form of private persecution without any state involvement and state protection is available in her country of origin.  In the circumstances, there is no scope for the Court to intervene by way of judicial review. 

16.  We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process. We agree with the judge that leave to apply for judicial review should not be granted.

17.  For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.