RE MD IMRAN

CAMP 33/2020

[2021] HKCA 1117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 33 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 988 OF 2018)

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J U D G M E N T

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

1.  By a judgment dated 15 April 2021 ([2021] HKCA 424), this Court (Yeung VP and Chu JA)  refused to grant an extension of time to the applicant to apply for leave to appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”)  given on 2 August 2019 in HCAL 988/2018 refusing to extend time for the applicant to seek leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”)  given on 31 May 2018 dismissing his petition/appeal from the decisions of the Director of Immigration (“the Director”)  given on 28 July 2014 and 3 January 2017 rejecting his non-refoulement claim.

2.  By a notice of motion dated 28 April 2021, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

(1)  The Court of Appeal Judges have erred in finding that the Judge had not failed to appreciate the significance of his non-refoulement claim.   The lack of assistance provided to him is an error of law or procedure, or evidence of procedural unfairness, or failure to adhere to a high standards of fairness.  Non-refoulement claims are life and limb cases and should be assessed with caution and with due consideration of his vulnerability and disadvantage.

(2)  Despite knowing his language incapacity, the authorities did not make any reasonable arrangements to enable him to understand the judgments and thereby depriving him of the right to seek further avenues of appeal.  This is a wrongful exercise of case management power in the delivery of judgment.

(3)  There has been procedural unfairness in the determination and the Judges have been presumptive about his situation.  It is not true that he has no reasonable prospect of success in his intended application for judicial review.

(4)  He was deprived of the right to make full grounds for appeal.  By not having the determination translated or read back to him, he could not understand the determination to the fullest and is unfair to him.  He had to submit everything in English as the court would not accept grounds written in his own language.

(5)  He had to seek help with being able to verify if everything is correct and true.  The fact that oral hearings were arranged with interpreters mean that the court recognizes the significance of language assistance, and therefore such assistance should extend to understanding the judgment.  This is contrary to the high standard of fairness required by law if this results in a deprivation of the right of a litigant to seek further avenues of appeal.

(6)  Even he admitted that he had a friend to help him to prepare Form 86 and the supporting affirmation, it does not mean that he may always find someone to assist him with interpretation/translation and to deal with the English documents. 

(7)  Prospect of success should not be determined by the Judges at this stage and he was deprived of making a full appeal and to put forward his grounds with language assistance.

(8)  A judgment that was made with the lack of evidential consideration of issues raised in court should be deemed as an erroneous judgment.

(9)  If a litigant was not fully informed of his rights and be given the opportunity to be heard with the necessary assistance, then such assistance, even were granted in the first place, cannot be regarded as useful.  

3.  In compliance with the directions made by the Registrar of Civil Appeals on 29 April 2021, the applicant lodged his written submissions on 12 May 2021.  In the applicant’s written submissions, he repeated his complaints on the lack of language assistance as procedural unfairness as he was unable to understand the reasons of refusal of his case, including the test adopted and Country of Origin information that was considered.

4.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

5.  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.

6.  As a matter of law, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004)  7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribes that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks means an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176. 

7.  We do not see any merit in respect of the challenge based on the lack of language assistance.  The high standard of fairness required by law would not entail an interpretation service being made available at any time the applicant desired.  It is further noted that all court documents in relation to the judicial review application and this leave application were written in English, indicating either that the applicant is familiar with the English language or that he has access to such language assistance as needed. 

8.  In our judgment, nothing set out in the notice of motion and the written submissions can be construed as valid ground of appeal to the Court of Final Appeal.  Accordingly, the applicant’s intended appeal is unarguable and bound to fail.

9.  For the reasons that we gave in our judgment of 15 April 2021, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and the written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b)  either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

10.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.