RE MUHAMMAD NASIR

CACV 67/2022

[2022] HKCA 1251

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 67 OF 2022

(ON APPEAL FROM HCAL NO. 257 of 2019)

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JUDGMENT

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

Introduction

1.  By a judgment (Judgment) [1]handed down on 23 June 2022 we dismissed the applicant’s appeal against the decision of Deputy High Court Judge To (“Judge”) made on 25 January 2022[2] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 18 January 2019.  The background and reasons for our decision were fully set out in the Judgment and we will not repeat them here.  

2.  The applicant, who is acting in person, filed a Notice of Motion dated 21 July 2022, seeking for an order to set aside our Judgment.  As the document states “TAKE NOTICE that the Court of Final Appeal/Appeal Committee/a permanent Judge of the Court will be moved…” and is addressed to, among others, the Registrar of the Court of Final Appeal, and as the applicant filed at the same time a Notice of intended application for leave to appeal to the Court of Final Appeal, we take his application made by the Notice of Motion to be one made to this Court for leave to appeal from our Judgment to the Court of Final Appeal.

3.  In the Notice of Motion, the applicant claimed, among other things, that the Courts have failed to appreciate the significance of his claim.  He also complained about the lack of assistance provided to him, saying that we had failed to address the issues he had raised in his skeleton submission dated 17 May 2022.  He complained he was not given language assistance, and that he had been deprived of his right to make full grounds of appeal.  The applicant requested a “reconsideration” of his case with an oral hearing arranged.

4.  In his written submission, the applicant reiterated his complaint of lack of language and legal assistance, saying that the Determination of the Appeal/Petition by the Board and the Judgment of the Court of First Instance were never translated to him so that he could understand what had been decided against him.  He asked for a reconsideration of his case based on unfairness and unreasonableness.

5.  We have read the Notice of Motion and the written submission filed in support.  As provided in paragraph 3 of the Practice Direction 2.1, such leave applications are dealt with and determined on paper without an oral hearing.  We see no reason why this application cannot be disposed of on paper without a hearing and we refuse the applicant’s request for an oral hearing.

6.  The grounds put forward by the applicant in the Notice of Motion are essentially the same as those he filed in the Notice of Appeal, ie the lack of legal and language assistance resulted in procedural unfairness, rendering him unable to lodge a proper appeal.

7.  It should be noted that an oral hearing was arranged for his attendance for his appeal on 13 June 2022 but the applicant failed to appear, thereby depriving himself of the chance to address us directly.

Discussion

8.  In our Judgment we have already found that in the present case, the Board rejected the applicant’s claim for non-refoulement protection mainly due to the passage of time (more than 20 years) attenuating any risk of harm.[3]  The Board also found that there was no real risk of harm in the event of refoulement as internal relocation was viable.  Such findings are within the province of the Board.  The Court will not interfere with such assessments unless they are reversible on public law grounds. 

9.  As for the applicant’s arguments regarding lack of legal and language assistance, we had indicated that whether the level of legal or language assistance provided would result in unfairness, depends on the circumstances.  We said the following in our Judgment:

“19. The applicant was legally represented and provided with language assistance on his claim before the Director.  At the Board proceedings, an interpreter was provided, and the Board decision was based on its assessment of the applicant’s oral evidence at the Board hearing compared with his previous evidence presented to the Director, as well as on country of origin information. The applicant did not raise any issue of language problem during the hearing before the Board. The applicant had not specified how the lack of language assistance outside the “hearing” before the Director and/or Board had affected him. Further, the Board assessed the claim on the assumption that the applicant’s allegations were true.

20. In the circumstances of this case, it is difficult to see how the level of legal or language assistance provided, in fact resulted in unfairness.”

10.  We do not see any basis to set aside our Judgment.  Leave to appeal should be refused as the applicant has not shown that the intended appeal raises any question which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision (which is the condition for giving leave to appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484), and also because the applicant has failed to show any prospects of success in the intended appeal.  Accordingly, the application is refused.

[1] See [2022] HKCA 896

[2] See [2022] HKCFI 278

[3] See paragraph 17 of Judgment