SHERPA MINGMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 157 /2019

[2020] HKCA 126

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 157 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 863 OF 2017)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is the applicant’s application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 13 November 2019 ([2019] HKCA 1274) refusing to grant leave to appeal out of time against the judge’s decision dismissing her application for leave to apply for judicial review concerning her non‑refoulement claim.

2.  In the Notice of Motion filed on 9 December 2019, the applicant stated her grounds of appeal which may be summarized as follows:

(1)     The Court of Appeal erred in determining that the judge had not failed to appreciate the significance of her non‑refoulement claim.  The lack of assistance provided to her is an error of law or procedure, or evidence of procedural unfairness, or failure to adhere to a high standard of fairness. 

(2)     She did not receive the letter of the Registrar’s unless order and did not receive the judgment dated 13 November 2019 although she had provided her address to the court.  She had explained about the delay in her 9 July 2019 affirmation.

(3)     She urged the authorities to take into account the real procedural unfairness and to put aside public policies of trying to dispose of non-refoulement claims as quickly as possible.

(4)     She has addressed the issue of lack of language assistance but the judge failed to consider such ground.  Her actual unique circumstances are not taken into account and it is therefore Wednesbury unreasonable.  Interpretation service should be made available if the claimant is suffering as a result of this lack of service.  Unless judges have made findings that the applicant was in fact made aware of the content of the judgments or given reasonable assistance in understanding the judgements, judges cannot dismiss her case on the basis of not including any draft grounds of appeal.

(5)     The determination of her appeal by the Torture Claims Appeal Board was never translated or read back to the applicant, even though interpretation was available at the hearing.  Fairness of a non-refoulement claim should not be limited to just the process of determination, but should extend to the determination itself.  It is the basic right of a litigant to understand what was decided against him so that he can make a full review later on.  The same extends to the judgment of the Court of First Instance.  Without knowing the reasons behind the dismissal of her claim, she was deprived of the reasonable opportunity to point out errors in full.  As a result of such intentional ignorance in procedural fairness, the burden should thus be shifted on the judges to help determine the grounds.

3.  On 12 December 2019, the Registrar of Civil Appeals had directed the applicant to lodge her written submission on or before 23 December 2019 but the applicant failed to do as directed.  According to the Registrar’s directions, the Notice of Motion is to be determined on paper without an oral hearing upon the expiry of the time for lodging written submissions.  Notwithstanding the request of the applicant for an oral hearing^[1], there is no justifiable reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing pursuant to paragraph 3 of Practice Direction 2.1.  We find it appropriate to do so and will determine this application on paper.

4.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) 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.

5.  The applicant complained that she did not receive the Registrar’s unless order and the Court of Appeal’s judgment dated 13 November 2019.  Both the court’s directions and the judgment were sent to her address by post.  As stated by the Court of Appeal in its judgment on 13 November 2019, it is the duty of a litigant to give the court an address to which correspondence or notice can come to her attention in a timely manner and the consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant. 

6.  As for the grounds concerning the lack of language assistance, the court has repeatedly stated that the high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire: Re Gurung Sagar[2019] HKCA 658 para 12.  In the present application, the applicant has demonstrated that she was able to deal with English documents and put forward her grounds in the Notice of Motion in English, or that she has obtained assistance for the preparation of the same.

7.  The rest of her grounds are just bare assertions without particulars or evidence in support.  They do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal.  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).

8.  For the above reasons, we dismiss the application for leave to appeal to the Court of Final Appeal.