MACANDZA MANUEL JOSE v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 260/2020

[2021] HKCA 1985

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 260 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 423 OF 2018)

________________________

________________________

J U D G M E N T

________________________

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

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 and G Lam JA) handed down on 30 July 2021 ([2021] HKCA 1067). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 4 April 2019 ([2019] HKCFI 399) refusing to grant extension of time for the applicant to seek 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 6 August 2021 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged his written submissions on 19 August 2021.  Having read his written submissions and the papers, we consider it appropriate to determine this application on paper.

3.  The applicant is a national of Mozambique.  He arrived in Hong Kong on 30 September 2010 as a visitor and subsequently overstayed. He was arrested by the police on 25 October 2011.  On 4 November 2011, he lodged a torture claim on the basis that if he returns to Mozambique he will be harmed or killed by his paternal uncle over a land dispute.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge.  His application was late by more than 11 months.  It was refused by the judge on 16 September 2020^[1].

5.  The applicant renewed his application to the Court of Appeal on 29 December 2020.  The application was dismissed by the Court of Appeal on 30 July 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6.  The applicant stated his grounds of appeal in the Notice of Motion filed on 6 August 2021, which may be summarized as follows:

(1)  There is error in the decision.  The decision maker just relied on the Country of Origin information (“COI”) which favours the rejection of the applicant’s claim.  The actual situation is different from the COI;

(2)  The immigration officer and the court ignored the evidence of violence towards minorities.  They took a biased and formula approach that is unlikely to fairly assess the danger to the applicant’s life and is clearly calculated to rejecting his claim.

7.  In his written submissions, he made the following further contentions:

(1)  His case has not been determined fairly;

(2)  There should be a proper and fair mechanism that allows unrepresented litigants to understand more about their claims;

(3)  He was never provided with proper legal and language assistance.  The Board’s decision has never been read to him in his own language.  The failure to provide proper assistance is procedurally unfair;

(4)  The discriminatory act of the authorities towards non-refoulement claimants in the quick disposal of non-refoulement cases is unacceptable and is detrimental to the spirit of the judicial system.

Analysis and disposition

8.  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.

9.  The applicant’s grounds and submissions were not raised in the leave application before the Court of First Instance or in the previous application before the Court of Appeal.  It is not open to him to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings.

10.  In any event, the applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  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^[2].  Furthermore, interpreter services were provided at hearings at every stage and at the time when the applicant was assisted by Duty Lawyer.  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 [2019] HKCA 658. 

11.  The rest of his grounds and submissions are just bare assertions without evidence in support.  The applicant failed to identify any error of the Court of Appeal in dismissing his application.  Besides, he has not identified 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).

12.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 6 August 2021.

[1] [2020] HKCFI 2253

[2] Re Paswan Shibu Lal[2018] HKCA 249 at §21