FATMAWATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 349/2019

[2021] HKCA 341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 349 OF 2019

(ON APPEAL FROM HCAL NO 1740 of 2018)

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JUDGMENT

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Hon S T Poon J (giving the Judgment of the Court):

1.  On 11 December 2019, this Court (Chu JA and S T Poon J) handed down our judgment^[1] (the “Judgment”) dismissing the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung given on 18 July 2019 refusing to grant him leave to apply for judicial review.

2.  The applicant filed a Notice of Motion on 18 December 2019 for leave to appeal to the Court of Final Appeal and lodged his written submissions on 2 January 2020.

3.  Pursuant to the directions made by the Registrar of Civil Appeals on 23 December 2019, the Notice of Motion shall be determined on paper only without an oral hearing, unless the court otherwise directs.  We agree it is appropriate to determine this application on paper.

4.  In the Notice of Motion, the applicant stated as follows:

(1)  This Court was wrong in finding that the Judge had not failed to appreciate the applicant’s non-refoulement claim.  The lack of assistance is an error of law or procedure, or evidence of procedural unfairness or failure to adhere to the high standard of fairness;

(2)  This Court had not addressed the issues referred to in paragraphs 4 to 10 of the applicant’s skeleton submissions seeking leave to appeal against the decision of the Judge;

(3)  The Judgment was wrong as the determination of the Board was never translated or explained to him.  He was deprived of his right to understand what was decided against him which is equal to a deprivation of the right to seek further avenues of appeal or review and the reasonable opportunity to point out errors in full.  The burden should thus be shifted on the judges to help determine the grounds;

(4)  The applicant urges the authorities to take into account the real procedural unfairness throughout the case and to put aside the public policy of trying to dispose of non-refoulement claims as quickly as possible.

(5)  The Deputy Judge failed to address the ground of lack of language assistance;

(6)  The judgment of the judges does not make logical sense at all;

(7)  The court has not provided explanation as to why no assistance can be provided to him as a litigant who does not understand the official languages and why it is not a valid point.  Since this is an error in the procedural fairness, his case should be reconsidered regardless of whether the outcome would be the same.

(8)  The court is merely presuming that all non-refoulement claimants are the same by dismissing his claim for lack of language assistance and did not take into account the actual unique circumstances.  It is therefore Wednesbury unreasonable.  Interpretation service should be made available if the claimant is suffering as a result of this lack of service.  There is no evidence that he has been able to understand the judgment to its fullest with the help he can get from his friends.

(9)  If a litigant has not been informed fully of his rights and given the opportunity to be heard with such assistance, it cannot be said that the assistance cannot be of any use.

(10)  He also requested an oral hearing for this application.

5.  In the written submission lodged on 2 January 2020, the applicant made these submissions:

(1)  The judgment does not make logical sense at all.

(2)  The judges have not considered his grounds of appeal thoroughly.

(3)  The judge erred in claiming that the applicant could find someone to assist him with interpretation/translation and dealing with English documents “at all material times”.  The lack of language assistance still exists.

(4)  Depriving the right of a litigant to understand what was decided against him is equal to depriving him of the right to seek further avenues of appeal or review.  The fact that the judge failed to acknowledge such lack of procedural fairness amounts to an error in judgment.

(5)  Without knowing the reasons behind the dismissal of his claim by the Court of First Instance, the applicant was deprived of the reasonable opportunity to point out errors in full.  As a result of such intentional ignorance in procedural fairness, the burden should thus be shifted to the judges to help determine the grounds.  The court and adjudicator owe a duty of care to self-represented litigants.

(6)  In the course of lodging an appeal against the decision of the Director or applying for leave, no legal assistance was provided to the applicant.

(7)  The applicant could not understand why his case was refused, including the tests and the Country of Origin information (“COI”).

(8)  There is no reasoning in explaining why COIs in support of his assertion are completely thrown out.

Discussion and disposition

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.  The grounds concerning the lack of language assistance have already been sufficiently dealt with by the Court of First Instance and this Court in the previous judgments.  The judge’s determination is well founded.  The Court of Appeal has held in the past that 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 para 12) and that an applicant of a non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings (Re Paswan Shibu Lal, CACV 284/2017, 4 May 2018, para 21).

8.  In the present application, the applicant has again demonstrated that he was able to deal with English documents and put forward his grounds and submissions in English, or that he has obtained assistance for the preparation of the same.  Further, the applicant was given an oral hearing before this court on 3 December 2019.  During the hearing, he was assisted by an interpreter.  He confirmed that he had nothing to add.

9.  We have considered the applicant’s notice of motion and written submissions.  The core of his arguments is essentially the lack of language and legal assistance which has been advanced before this court.  We have addressed these grounds in detail at [13-15] of the Judgment.  Other than repeating his such arguments, the applicant failed to identify with any particularities or errors in the Judgment.  These are not viable grounds of appeal.

10.  As for the grounds pertaining to public policy and the lack of reasoning concerning the Country of Origin information, they were not raised in the leave application before the Court of First Instance or in the appeal before this Court.  It is not open to the applicant 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.

11.  The applicant’s other criticisms against the judgment of this Court are just bare assertions without particulars or elaboration.  There is no reasonably arguable ground in his arguments for reversing the judgment of this Court. 

12.  On the whole, the grounds and submissions of the applicant do not have any reasonably arguable basis for reversing the judgment of the Court of 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).

13.  In the circumstances, the statutory requirements for giving leave to appeal is not met.  Accordingly, we dismiss the notice of motion.