RE GURUNG INDRA KUMAR

CAMP 211/2019

[2020] HKCA 856

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 211 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 151 OF 2018)

_____________________

_____________________

___________________

J U D G M E N T

___________________

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

1.  By a judgment dated 11 June 2020 ([2020] HKCA 395), this Court (Yeung VP and Pang JA) refused to grant leave to the applicant to appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 11 June 2019 in HCAL 151/2018 refusing to extend time for the applicant’s late application for leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board (“Board”) given on 9 June 2017 dismissing his petition/appeal from the decisions of the Director of Immigration (“Director”) given on 15 April 2016 and 28 March 2017 rejecting his non-refoulement claim.

2.  By a notice of motion dated 26 June 2020, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

“1. I was deprived of the right to make full grounds for appeal. By not having the Determination translated or read back to me, I could not have understood the Determination to the fullest and is unfair to me. I had to submit everything in English because the Court would not accept grounds written in my own language, otherwise I would have done that.

2. The Judges have erred in determining that the Judge had not failed to appreciate the significance of my non-refoulement claim. The lack of assistance provided to me 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, taking into account my vulnerability and disadvantage.

3. I urge the authorities to take into account the real procedural unfairness throughout the case and to put public policies of trying to dispose of non-refoulement claims as quickly as possible aside.

4. The Court has not provided explanation as to why no assistance can be provided to me as a litigant who does not understand the official languages and why it is not a valid point. It should not matter whether the outcome would be the same with or without language assistance, but since this is an error in the procedural fairness, my case should be reconsidered.

5. By dismissing of my claim for lack of language assistance with this sentence is merely presuming that all non-refoulement claimants are the same and did not take into account our actual unique circumstances and is therefore Wednesbury unreasonable. Interpretation service should be made available if the claimant is suffering as a result of this lack of service, for example, how even till now I have not been provided with proper language assistance in understanding the judgments, nor has there been any solid evidence that I have been able to understand the judgment to its fullest with the help I can get from my friends.

6. Unless Judges have made findings that I was in fact made aware of the content of the judgments or be given reasonable assistance in understanding the judgment as a self-represented non-refoulement claimant, then the Judges cannot dismiss of my case on the basis of not including any draft grounds of appeal.

7. If a litigant has not been informed fully of his rights 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.

8. Prospect of success should not be determined by the Judges at this stage as I have been deprived of making full appeal and to put forward my grounds fairly without the help of language assistance.  It is not the Judges’ power to determine what I am putting in as grounds and what I am not, and therefore administratively speaking the Judges could not have possibly made a finding on prospect of success based on this ground.”

3.  On 17 July 2020, the Registrar of Civil Appeals directed the applicant to lodge with the Court his written submissions in support of the notice of motion on or before 3 August 2020.  The Court received the applicant’s written submissions dated 3 August 2020 by post on 24 August 2020 and 25 August 2020 (with the same copy).  Despite the applicant’s failure to lodge his written submissions as directed, we are prepared to exercise our discretion to excuse the delay.

4.  In the applicant’s written submissions, he contended that:

(a)  Our judgment was illogical and did not consider his grounds of appeal thoroughly.  His ground of appeal was that the Judge erred in finding he could find assistance for interpretation / translation to deal with the English documents “at all material times” but in fact it was not the case as the Board’s decision was never interpreted or translated to him;   

(b)  Fairness should not be limited to the process of determination but extends to the determination itself.  It is the basic right of a litigant to understand what was decided against him so that he could make a full review later on.  To deprive him of such right means to deprive him of the right to seek further avenues of appeal or review;

(c)  The Judge failed to acknowledge such lack of procedural fairness amounted to an erred judgment;

(d)  The Judge, without knowing the reasons behind the dismissal of his claim, deprived him of a reasonable opportunity to point out errors in full.  As a result of such intentional disregard of procedural fairness, the burden should be shifted to the Judges to help determine the grounds.  It was not true that he could find assistance for interpretation, translation and dealing with English documents at all material time and for this, the Court and the Adjudicator owe a duty of care to self-represented litigants;

(e)  In the course of lodging an appeal against the Director’s decisions or applying for leave, there was a lack of legal assistance rendered to him and it was the main reason “he did not elaborate all the error of Board;

(f)  The request to the Court for translation for better understanding was not considered by the judges, even though he had pointed it out for reconsideration of his case on the basis of procedural unfairness;

(g)  He only understood the facts of the case and also the fact that his claim was refused, but he could not understand the reasons why, including the tests and also the Country of Origin Information (“COI”);

(h)  There was a lack of explanation why COI in support of his assertion was rejected;

(i)  His case should proceed and reasonable opportunity and time should be given to him as a self-represented litigant;

(j)  The lack of language assistance still exists up to date; and

(k)  He sought for reconsideration of his case.

5.  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.

6.  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.

7.  In the applicant’s lengthy grounds of complaints as set out in the notice of motion and his written submissions, he mainly regurgitated his complaints about lack of language and legal assistance throughout the process of his appeal before the Board up to his applications to the Court. These arguments were duly canvassed and rejected at [18] to [20] of our judgment which we would not repeat here.   In our judgment, nothing set out in the notice of motion or his written submissions can be construed as valid grounds of appeal to the Court of Final Appeal. 

8.  Though it has recently been held by the Court of Final Appeal in H v Director of Immigration [2020] HKCFA 22 that an applicant did not need to seek leave under section 14AA of the High Court Ordinance (Cap. 4) (“Section 14AA”) to appeal to this Court in respect of a refusal of extension of time to bring an application for leave to judicial review, and technically an appeal can be brought to this Court by way of appeal out of time, it cannot assist the applicant in this instance because:

(a)  the present application is made in respect of our judgment on refusal of Section 14AA leave and it serves no purpose for an appeal to the Court of Final Appeal regarding such refusal of leave.  The reversal of our decision on Section 14AA leave would not automatically lead to success in his appeal against the Judge’s decision of 11 June 2019.  To achieve that he needs to bring an appeal to this Court;

(b) due to lapse of time, the applicant needs an extension of time to bring an appeal to this Court and if he made such application, the Court will have regard to the merits of his intended appeal in deciding if extension should be granted; and

(c)  having regard to our views on the lack of merit in his intended appeal as set out at [18] to [20] of our judgment of 11 June 2020, this Court will not grant an extension of time for a futile appeal to be brought.

9.  For the aforesaid reasons and the reasons we gave in our judgment of 11 June 2020, 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 his 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.

10.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.