RE SHAH WALEED

CACV 170/2020

[2021] HKCA 381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 170 OF 2020

(ON APPEAL FROM HCAL NO 2863 OF 2018)

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J U D G M E N T

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Hon Toh J (giving the Judgment of the Court):

BACKGROUND

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Toh and Lam JJ) handed down on 12 January 2021[1].  The Court of Appeal dismissed his appeal against the decision of Deputy High Court Judge K W Lung on 28 May 2020[2] dismissing the application for leave to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 8 February 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions on 19 February 2021.  Having considered his submissions, it is considered appropriate to determine this application on paper.

3.  The applicant is a national of Pakistan.  He is 29 years old.  He came to Hong Kong illegally on 13 November 2015 and was arrested on the same day.  He lodged a non-refoulement claim on 15 November 2015 on the basis that he would be harmed or killed by members of Muttahida Qaumi Movement because they demanded him for extortion which he refused.

4.  His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 28 February 2018.  His appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board(“the Board”) on 3 December 2018.

5.  He filed a Form 86 on 13 December 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  His application was refused by DHCJ K W Lung on 28 May 2020.

6.  On 11 June 2020, the applicant filed a notice of appeal against the decision of DHCJ K W Lung.  An oral hearing of the appeal was conducted before the Court of Appeal on 5 January 2021.  The appeal was dismissed by the Court of Appeal on 12 January 2021.  The applicant filed a Notice of Motion on 5 February 2021 for leave to appeal to the Court of Final Appeal.

GROUNDS OF APPEAL

7.  The applicant stated his grounds of appeal in the Notice of Motion which may be summarized as follows:

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

(2)  The judges had not addressed the issues regarding (6) to (10) in his skeleton submission dated 17 December 2020;

(3)  The applicant was deprived of the right to make full grounds of appeal by not having the determination translated or read back to him so he could not understand the determination fully and it is unfair to him;

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

8.  He made further contentions in his written submissions which may be summarized as follows:

(1)  The judgement of the judges does not make logical sense at all;

(2)  The judges have not considered his grounds of appeal thoroughly;

(3)  The judge failed to acknowledge the procedural unfairness of not providing translation of the Board’s determination to the applicant;

(4)  The applicant was unable to understand the reasons behind the judgment of the Court of First Instance.  As a result of such intentional ignorance in procedural fairness, the burden should be shifted to the judges to help determine the grounds of appeal;

(5)  No legal assistance was provided in lodging appeal to the Board and applying for leave;

(6)  There is no reasoning in explaining why the country of origin information in support of his assertion is completely thrown out.

ANALYSIS

9.  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.

10.  As for the grounds pertaining to the lack of language assistance, the applicant had submitted at the hearing before DHCJ K W Lung that he understood the Director’s decision which was explained by his lawyer and he also understood the Board’s decision as his friend explained it to him.  These oral submissions, together with the fact that he was able to set out his grounds of appeal and written submissions in English, indicate that he has access to language assistance of his own if needed.  Moreover, 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[3].

11.  The applicant also criticized the Court of Appeal for failing to address the issues in paragraphs (6) to (10) of his skeleton submission dated 17 December 2020 (which are related to the grounds of lack of language and assistance as well as the lack of reasoning) and failing to consider his grounds thoroughly. In fact, the Court of Appeal has already explained the reasons for rejecting the applicant’s grounds, which include the relevant issues in his skeleton submission, in paragraph 15 of the judgment dated 12 January 2021. Thus, this ground is without merits.

12.  As for the ground relating to the lack of legal representation, the Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings[4].The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  Thus, this ground is bound to fail.

13.  The applicant’s complaint about the lack of reasoning in rejecting the country of origin information is without basis.  The Director and the Board had given detailed reasoning in this regard in paragraphs 19 to 21 of the Director’s notice of decision and paragraphs 31 to 33 of the Board’s decision respectively.

14.  The rest of his grounds and submissions are just bare assertions without particulars or evidence in support.

15.  The applicant 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).

16.  For the above reasons, his Notice of Motion filed on 5 February 2021 should be dismissed.

[1] [2021] HKCA 46

[2] [2020] HKCFI 966

[3] [2019] HKCA 658

[4] CACV 284/2017 Re: Paswan Shibu Lal, para 21