RE THAM NARAYAN IWA LIMBU

CACV 107/2019

[2019] HKCA 1037

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 107 OF 2019

(ON APPEAL FROM HCAL NO 245 OF 2018)

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J U D G M E N T

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

1.  The applicant applies for leave to appeal to the Court of Final Appeal in respect of our judgment handed down on 10 July 2019 ([2019] HKCA 756) dismissing his appeal against the refusal of leave to apply for judicial review concerning his non-refoulement claim.

Background

2.  By a Notice of Decision dated 25 March 2015 and a Notice of Further Decision dated 22 May 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim.

3.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s decisions and his appeal was dismissed by the Board on 1 February 2018.

4.  He filed a Form 86 on 15 February 2018 to seek leave to apply for judicial review against the decision of the Board. His application was refused by Deputy High Court Judge Bruno Chan on 28 February 2019.

5.  On 5 March 2019, the applicant filed a Notice of Appeal against the decision of the Judge. The appeal was heard on 25 June 2019. The Court of Appeal dismissed the appeal on 10 July 2019 as there was no merit in the appeal and that there was no prospect of success in the intended application for judicial review.

6.  The applicant filed a Notice of Motion on 22 July 2019 for leave to appeal to the Court of Final Appeal. He lodged his written submissions on 5 August 2019.

Grounds of Appeal

7.  Insofar as we can make out the meaning of their content (see our note in brackets after each of them), we set out below a summary of the applicant’s grounds of appeal to the Court of Final Appeal. These grounds are found in the above-mentioned Notice of Motion :

(1)  This Court was wrong in finding that the Judge had not failed to appreciate the applicant’s non-refoulement claim (re substantive merits).

(2)  This Court had not addressed the issues referred to in paragraphs 4 to 8 of the applicant’s skeleton submissions (re the alleged language problem and lack of legal aid).

(3)  The applicant was deprived of his basic right to understand what was decided against him; the determination of the Board was never translated or read to him (re the alleged language problem).

(4)  This Court was wrong to insist that it would only examine the Judge’s decision in light of the grounds that had been put forward by the applicant viz paragraph 16 of our judgment; the applicant cannot be expected to provide full grounds if he was not given the opportunity to understand the Judge’s judgment (re the alleged language problem and lack of legal aid).

(5)  A judgment that is lacking in evidential consideration of the issues raised is a wrong judgment (re substantive merits).

(6)  Unless this Court can determine that the applicant was in fact made aware of the content of the previous judgments or was given reasonable assistance in understanding those judgments, this Court cannot dismiss the applicant’s case on the basis that it was lacking in grounds of appeal (re the alleged language problem).

8.  In his said written submissions, the applicant has put forward a number of self-explanatory contentions. Again, they are summarized below by us :

(1)  It is the applicant’s basic right to understand what was decided against him. To deprive him of that right is to deprive him of the right to seek further appeal or review. The fact that the Judge failed to acknowledge such a procedural unfairness renders his judgment a wrong one.

(2)  It is not correct that, when asked by the Judge what was wrong with the previous judgments or decisions, the applicant said nothing. Linguistically handicapped and unable to understand the previous judgments or decisions, the applicant was unable to point out any errors.

(3)  The applicant did not avail himself to legal aid because, linguistically handicapped, he was unable to follow the process of application.

(4)  The fact that the applicant had the help of a friend in translation did not relieve the authorities of their obligation to accommodate his language needs. Providing language assistance is part of procedural fairness.

(5)  This Court is too strict with non-refoulement claimants. It is essentially discriminatory against people who do not have legal representation and who are unable to prepare and advance legal arguments.

(6)  There is a lack of transparency in the processing of non-refoulement claims.

Discussion & Disposal

9.  On 23 July 2019, pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed that the Notice of Motion be determined on paper without oral hearing. This we do now.

10.  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.

11.  We are satisfied that all the issues raised by the applicant in his appeal to the Court of Appeal have been dealt with in our judgment dated 10 July 2019. He has failed to demonstrate on which point or points the judgment was wrong. In particular, his complaint of lack of language assistance is contradicted by the fact that at no stage was this point raised before the Director, the Board and/or the Judge, insofar as we can tell from the available documents. The same point was dismissed by us at paragraphs 18 to 20 of our judgment, which also covers his complaint about the lack of legal aid.

12.  The applicant’s complaint about the lack of transparency in the processing of non-refoulement claims is new and, in any event, a matter of mere rhetoric.

13.  In sum, none of the applicant’s grounds of appeal and submissions constitute valid grounds for granting leave to appeal to the Court of Final Appeal. He 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.  The application for leave to appeal to the Court of Final Appeal is dismissed.