RE MEHMOOD MUFTI

CACV 194/2021

[2021] HKCA 1879

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 194 OF 2021

(ON APPEAL FROM HCAL NO 1960 OF 2018)

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JUDGMENT

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Hon Yuen JA (giving the Judgment of the Court):

1.  This court (Yuen and Chow JJA) handed down judgment on 20 September 2021 ([2021] HKCA 1356) dismissing the applicant’s appeal against an order of DHCJ To (“the Judge”) given on 16 April 2021 refusing to give the applicant leave to apply for judicial review in respect of his non‑refoulement claim (“the Judge’s Decision”).

2.  On 27 April 2021, the applicant had filed a Notice of Appeal to appeal against the Judge’s Decision.  As mentioned earlier, in our judgment of 20 September 2021, we dismissed the applicant’s appeal.  The facts and issues in the appeal before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.  On 5 October 2021, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal on the following grounds:

(1)  There are questions of great general or public importance.

(2)  He was not given language assistance before the Torture Claims Appeal Board and the court.  No regard was given to the fact that English is not his first language and he cannot communicate without an interpreter.

(3)  It is unfair for a self-represented litigant not to have language support and the process is unfair and unjust.

(4)  The Court of Appeal erred in its decision that the Judge had not failed to appreciate the significance of his non-refoulement claim.  The lack of assistance was an error of law and procedure and a failure to adhere to the high standards of fairness.  The Court of Appeal rejected ground 1 of his ground of appeal by saying that “Ground 1 is a vague and general accusation without any specific grounds or elaboration.” The applicant could not elaborate his ground without legal assistance.

(5)  Such miscarriage of justice should not be taken lightly and is a solid threat to a fair judicial system.

(6)  There is a lack of language assistance and interpretation service.

(7)  The applicant could not understand the Court of Appeal judgment without translation.  He requested the court to read the decision to him and give him reasonable time to respond.

(8)  He was deprived of the right to “make full grounds of appeal” without language assistance.

(9)  The Court of Appeal was wrong in dismissing his appeal as questions of great general or public importance have all along been identified.

(10)  He sought a reconsideration of his case with an oral hearing.

4.  Pursuant to the directions made by the Registrar of Civil Appeals made on 5 October 2021 and Practice Direction 2.1, the applicant should lodge his written submissions on or before 19 October 2021.  He lodged it on 20 October 2021.  In his written submissions, he advanced the following:

(1)  The judgment did not make logical sense.

(2)  The Judges did not consider his grounds of appeal thoroughly.

(3)  He requested the Court of Appeal to reconsider his case and provide him with legal and language assistance.

(4)  He was deprived of his right to file a proper appeal for the lack of language assistance and it is discriminatory and unlawful.  The authorities did not take into account that he is traumatized by the problem in his home country, English is not his first language and he was not allowed to work in Hong Kong.

(5)  It is not true that he can understand the Board’s decision and the legal jargon without language and legal assistance.  The court should not expect him to comment on the findings.

(6)  The Board’s decision was never translated to him and it is his basic right to understand what was decided against him so that he can make full review.  To deprive him of such right means deprivation of the right to seek further avenues of appeal or review.

(7)  Without knowing the reasons of the Judge’s decision, he was deprived of the reasonable opportunity to point out the errors in full.  The Judge is obliged to help him to determine the grounds and it is not true that he could find assistance for interpretation or dealing with the English documents.  The Court and the Adjudicator owe a duty of care to self-represented litigants.

(8)  There is a lack of legal assistance for his appeal against the Director’s decision and for his leave application before the Judge.

(9)  His request for translation for better understanding was not considered by the Judge even though he had requested for reconsideration of his case based on procedural unfairness.

(10)  He requested that his case proceed to judicial review with suitable time and opportunity to be given to him as a self-represented litigant.

(11)  Upon receiving language assistance, he requested for a reasonable time to make further submissions in relation to the errors made by the authorities.

(12)  He requested for reconsideration of his case.

5.  The Registrar further directed that the Notice of Motion shall be determined on paper only without an oral hearing.  As it is appropriate to do so, we proceed to determine this application on paper. 

6.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that leave to appeal to the Court of Final Appeal may be granted if 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.

7.  His grounds of appeal based on the alleged lack of legal and language assistance had been dealt with by this Court at [12] to [14] of our judgment.  Having regard to the judgment of this court, the applicant’s intended appeal has no merits.  No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.    

8.  Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

9.  By reason of the above, the Notice of Motion filed on 5 October 2021 is dismissed.