RE VIRDHI KARUN

CACV 320/2020

[2021] HKCA 850

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 320 OF 2020

(ON APPEAL FROM HCAL NO. 2415 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 1 March 2021 ([2021] HKCA 202), this Court (Yeung VP and B Chu J) dismissed the applicant’s appeal against the decision of DHCJ K.W. Lung (“the Judge”) given on 22 July 2020 in HCAL 2415/2018 refusing to grant him leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office (“the Board”) given on 24 October 2018 dismissing his petition/appeal from the decision of the Director of Immigration (“Director”) given on 29 January 2018 rejecting his non-refoulement claim.

2.  By a notice of motion dated 10 March 2021, the applicant now seeks leave to appeal against our judgment to the Court of Final Appeal on the following grounds:

(1)  Our judgment erred in determining the Judge did not fail to appreciate the significance of the applicant’s 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 standard of fairness.  This is because non-refoulement claims are life and limb cases and should be assessed with caution, considering his vulnerability and disadvantage.

(2)  Our judgment did not address the issues regarding (6) to (10)[1] of his skeleton submission dated 22 January 2021 seeking leave to appeal against the Judge’s decision dated 22 July 2020.

(3)  The applicant 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.  I had to submit everything in English because the Court would not accept grounds written in his own language, otherwise, he would have done that.

(4)  Instead, he had to ask for help without having the ability verify if everything is correct and true.  The fact that oral hearings and 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. 

(5)  The applicant reiterates the authorities, despite knowing of his language incapability, have not made reasonable arrangement to enable him to understand the content of the judgment and thereby depriving him of the right to seek further avenue of appeal.  This is a wrongful exercise of case management power and he verily believes that this should be looked into carefully as a case management power should extend all the way to how a judgment is delivered.

(6)  The applicant stands by the grounds about the lack of procedural unfairness and such discrimination against non-refoulement claimants is unacceptable.  He admitted that he had a friend to help him to prepare Form 86 and the affirmation for judicial review.  But it does not mean that he may always find someone to assist him with interpretation/translation and to deal with English documents.  Therefore, he made this submission to the best of his knowledge only.

(7)  A judgment that has been made with the lack of evidential consideration of issues raised in Court should be deemed an erred judgment.

(8)  If a litigant has not been informed fully of his right and be given the opportunity to be heard with such assistance, then it cannot be said that the assistance cannot be of any use as it was not even granted in the first place.

(9)  The applicant seeks a reconsideration of the case with an oral hearing arranged.

3.  In compliance with the directions made by the Registrar of Civil Appeals on 11 March 2021, the applicant lodged his written submissions on 23 March 2021.  In the written submissions, he made similar grounds as set out in the Notice of Motion.  In gist, he complained of the procedural unfairness for the lack of language and legal assistance, and that he did not understand the decision and judgment made against him and therefore he was unable to make full grounds for his appeal.  He further contended that the Judge erred in finding that there is no reasonable prospect of success in his intended application for judicial review.

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.  Here, the applicant merely tried to regurgitate the arguments on the lack of legal and language assistance which were canvassed and duly rejected by the Judge at the lower court[2] and by this Court[3] and it is not a valid ground to support the appeal.  As explained at [10] and [12] of our judgment, assessment of evidence and risk of harm as well as finding on credibility is within the province of the Board and the court would not intervene unless with valid public law grounds which we found none in this case.  In our judgment, nothing set out in the Notice of Motion and the written submissions can be construed as viable ground of appeal to the Court of Final Appeal.

7.  For the reasons that we gave in our judgment of 1 March 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.

8.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion.

[1]  The relevant part of the applicant’s written submissions dated 22 January 2021 are:

“6.   Even till now, the Call 1 Form was not explained to me by a qualified interpreter or translator and I therefore am again deprived of the right to make a full appeal.

7.  Since Deputy High Court Judge K.W. Lung did not consider this ground when making the judgment, I respectfully submit that the judgment is erred, and my case should be reconsidered.

8.  I hereby request for the translation and language assistance required for the better understanding of my case as this is one of the primary rights of a litigants. I also request for an oral hearing with an interpreter arranged and reserve the right to provide further submissions within a reasonable timeframe upon having the determinations read back to me.

9.  I therefore seek reconsideration of my case based on procedural unfairness.

(there is no paragraph 10 in the written submissions.)”.

[2]  [17] and [18] of the CALL-1 Form dated 22 July 2020.

[3]  [11] of our judgment.