RE SOHI MANPREET SINGH

CACV 140/2019

[2019] HKCA 1038

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 140 OF 2019

(ON APPEAL FROM HCAL NO 768 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 757) 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 21 July 2017, the applicant’s claim was rejected by the Director of Immigration (“the Director”).

3.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s decision and his appeal was dismissed by the Board on 20 April 2018.

4.  He filed a Form 86 on 3 May 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board. His application was refused by Deputy High Court Judge Josiah Lam on 7 March 2019.

5.  The applicant filed a Notice of Appeal against the decision of the Judge on 20 March 2019. The appeal was heard on 25 June 2019. It was dismissed by the Court of 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 24 July 2019 for leave to appeal to the Court of Final Appeal and lodged his written submissions on 7 August 2019.

Grounds of Appeal

7.  In the said Notice of Motion, the applicant stated his grounds of appeal which are summarized as follows :

(1)  The determination of the Board was never translated or read to the applicant through an interpreter. It is the basic right of a litigant to understand what was decided against him in order that he may review the decision. The lack of interpretation services in this respect amounts to a deprivation of right to seek further appeal.

(2)  The same applies to the Court of First Instance. Without knowing or understanding the Judge’s reasons for dismissing his claim, the applicant was deprived of the means to point out his errors. In the circumstances, the Court of Appeal should “help determine the grounds”.

(3)  It is not true that the applicant had not raised issues of lack of interpretation services in the original leave application before the Judge. This Court was in error in accusing the applicant of never raising such a point (paragraph 10 of the Court’s judgment).

(4)  It was mentioned at paragraph 18 of this Court’s judgment that “the applicant claimed that his brother had also been murdered by the people going after him in June 2018. A completely new point, this was never raised before the Judge in the leave application of 7 August 2018 and it is not for this Court to deal with.” The leave application was made in May 2018, not August 2018. As the murder of the applicant’s brother took place after the leave application was made, it is unfair for this Court to disregard this point and attack the applicant on the timing. There should be a discretionary power in this Court to look into the matter.

8.  The same contentions were reiterated in his written submissions.

Discussion & Disposal

9.  On 30 July 2019, pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the Notice of Motion be determined on paper only without an 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.  This Court was not in error as per Ground 3 of the applicant’s present grounds of appeal. Paragraph 10 of our judgment refers to the applicant’s criticism of the Judge’s lack of consideration of the “significance and level of unfairness the lack of language assistance had on him” (a very general criticism of the system) and the lack of assistance in “interpreting the content of the hearing bundle to the applicant” (a criticism of great specificity). These criticisms are not the same as “the lack of interpretation service after the Director’s decision” (see paragraph 27 of the Call-1 Form), which we understood to mean the interpretation of the decision to the applicant, and which the Judge proceeded to deal with in the latter part of the same judgment – satisfactorily in our opinion (paragraphs 16 and 17 of our judgment).

12.  It is our judgment that at every stage of his non-refoulement application, the present one included, the applicant was and is fully apprised of the reasons of the decisions against him, through whatever means, as is evidenced by his subsequent complaints and/or criticisms, all of which were lodged in the English language. We do not see in what way has the applicant’s right to further appeal has been hampered.

13.  As regards the applicant’s claim that his brother was murdered in June 2018, the original leave application before the Judge was heard on 7 August 2018. During that hearing, there was no mention of any murder in the applicant’s submissions, only that this brother had been kidnapped (viz the hearing notes). In any event, there was no application by the applicant to adduce further evidence so the Court of Appeal was justified not to exercise its discretion to entertain that new point.

14.  The applicant’s grounds of appeal do not 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).

15.  The application for leave to appeal to the Court of Final Appeal is dismissed.