RE SUSI SETIAWATI

CACV 307/2021

[2022] HKCA 761

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 307 OF 2021

(ON APPEAL FROM HCAL NO. 1132 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

I.  Leave to appeal to the Court of Final Appeal

1.  On 30 November 2021, this Court (Cheung JA and Lisa Wong J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 7 June 2021 in which he refused to grant leave to the applicant to apply for judicial review.

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

3.  The applicant now applies, by a notice of motion filed on 14 December 2021, for leave to appeal against our judgment to the Court of Final Appeal.                  We will deal with the present application on paper without an oral hearing. 

4.  The applicant stated in her notice of motion the following points :

1)  There was a lack of assistance to the applicant which was an error of law or procedure.

2)  The authorities have not enabled the applicant to understand the content of the judgments.

3)  The applicant was not given a translation of the judgment.

4)  The applicant could not provide full grounds of appeal if the decisions were not translated to her.

5)  The applicant did not understand the decisions of the courts and the Board.  The applicant had the help of a friend but that did not mean she understood the decisions.

6)  The friend’s help was limited, and there was a need for legal representation.

5.  In her written submissions, she stated that she would like a reconsideration of her case, and to clarify what she meant by lack of legal representation.  As she did not have legal representation she did not understand legal jargon.  She was deprived of the right to make a proper appeal as there was a lack of language assistance.  She did not understand the Board’s decision and the judgment of the Court of First Instance.  It was her basic right to be able to understand them.  The Court owes a duty to litigants to assist them to understand the Court’s decisions.

II.  Our view

6.  Under section 22(1)(b) of the HongKong Court of Final Appeal Ordinance (Cap. 484) (‘Ordinance’) leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

7.  The matters stated by the applicant in her notice of motion and written submissions do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the Ordinance.  Nor is there any such question apparent to us from the matters she has raised in her notice of motion or written submissions. 

8.  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b) of the Ordinance.

III.  Disposition

9.  For these reasons, the notice of motion dated 14 December 2021 is dismissed.

CACV 307/2021

[2021] HKCA 1759

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 307 OF 2021

(ON APPEAL FROM HCAL NO. 1132 OF 2018)

________________________

________________________

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J U D G M E N T

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

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan of 7 June 2021 in which he refused to grant leave to her to apply for judicial review.

2)  Factual background

2.  The applicant is a national of Indonesia.  She came to Hong Kong to work as a foreign domestic helper.  In July 2011 her employment contract was pre-maturely terminated and she overstayed until July 2015.  She then surrendered herself to the Immigration Department and raised a non-refoulement claim in April 2016.

3.  The basis of the applicant’s claim is that she would be harmed or killed by seven moneylenders because she failed to repay the loans to them.

4.  The background facts have been summarized in the decision of the Judge at [2]-[5].

3)  The Director’s Decision

5.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement on 22 February 2017. The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk, Bill of Rights Article 2 (right to life)  risk, as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’)  on 8 March 2017.  After a hearing held on 9 March 2018, the Board dismissed the applicant’s appeal on 16 June 2018 (‘the Board’s Decision’).

7.  The Board found that there were many inconsistencies between the different versions of events described by the applicant.  The applicant cannot be precise as to whether it was her friends that she did business with or her moneylenders to whom she owed money.  The applicant gave four versions of whether she did or did not contact the police.  The Board found that the inconsistencies were fatal because the centrepiece could not stand.  The Board found that no such loans were ever taken by the applicant for starting her business.

5)  Decision of the Judge

8.  The applicant filed her Form 86 but no grounds were provided.  In her supporting affirmation, she merely repeated that her life would still be in danger in her home country without putting forward any proper ground.   

9.  The Judge held that the Board rejected the applicant’s claim due to a negative finding on credibility.  There was an absence of any error of law, irrationality or procedural unfairness.

6)  Grounds of appeal

10.  The applicant in the notice of appeal stated a variety of complaints including procedural unfairness, her language incapability and her lack of legal and language assistance.

11.  In her written submissions, the applicant stated that the Director did not make a finding on credibility but the Board did.  She complained that there was unfairness and unreasonableness because there was again a lack of language and legal assistance.

7)  Our view

12.  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [38] and [39].  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.

13.  One instance of lack of sufficient particularity is the lack of language assistance.  There were no particulars on how that was the case.  There was no elaboration of the existence of wrong translation. All of the applicant’s documents were provided in English, indicating either the applicant is familiar with English or she had means and access to such language assistance: Gurnishan Singh[2018] HKCA 704 at [13].  As for legal assistance, high standards of fairness do not mean that the applicant may have free legal representation at all stages of the proceedings: Re Zunariyah[2018] HKCA 14 at [18].  As to the contention that the Board had made findings on credibility but the Director did not, both the Director and the Board had assessed the case on all applicable grounds and the applicant failed on all applicable grounds.

14.  We see no basis to disturb the Judge’s decision. Accordingly, the appeal is dismissed.

Applicant, unrepresented, appearing in person