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

CACV 470/2019

[2020] HKCA 715

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 470 OF 2019

(ON APPEAL FROM HCAL NO 1033 OF 2018)

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BETWEEN

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J U D G M E N T

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

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Lee J) handed down on 4 June 2020 ([2020] HKCA 383). The Court of Appeal dismissed his appeal against the decision of Deputy High Court Judge Bruno Chan on 25 September 2019 ([2019] HKCFI 2286) refusing leave to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 2 July 2020 that the Notice of Motion shall be determined on paper only without an oral hearing.  Having considered the written submission lodged by the applicant on 14 July 2020, we think it is appropriate to determine this application on paper and will proceed to do so.

3.  The applicant’s non-refoulement claim was rejected by the Director of Immigration (“the Director”) by a Notice of Decision dated 16 June 2017.  His appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board (“the Board”) on 27 March 2018.

4.  He filed a Form 86 on 6 June 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  His application was refused by DHCJ Bruno Chan on 25 September 2019.

5.  The applicant filed a Notice of Appeal against the decision of the judge on 4 October 2019.  The appeal was heard by the Court of Appeal on 26 May 2020 and was dismissed on 4 June 2020.  He filed a Notice of Motion on 30 June 2020 for leave to appeal to the Court of Final Appeal.

6.  The applicant stated the following grounds of appeal in his Notice of Motion:

(1) The Court of Appeal has erred in determining that the judge had not failed to appreciate the significance of his non-refoulement claim.

(2) The lack of assistance provided to him is an error of law or procedure, or evidence of procedural unfairness, or failure to adhere to a high standard of fairness.  Non-refoulement claims are life and limb cases and should be assessed with caution, taking into account his vulnerability and disadvantage.  The judge did not consider his ground on the lack of language assistance.  The Call-1 Form and the judgment of the Court of Appeal were not explained to him by a qualified interpreter or translator so he did not have a full understanding of the content and was deprived of the right to make full appeal. 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.

(3) The Court of Appeal has not addressed the issues regarding paragraphs 4 to 9 of his skeleton submission seeking leave to appeal against the decision of the judge.

(4) He urged the authorities to take into account the real procedural unfairness and to put aside public policies of trying to dispose of non-refoulement claims as quickly as possible.

(5) 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.

(6) Unless judges have made findings that he was in fact made aware of the content of the judgments or given reasonable assistance in understanding the judgments, the judges cannot dismiss his case for not submitting any draft grounds of appeal.

(7) 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.

7.  In the written submission lodged on 14 July 2020, the applicant made further submissions as follows:

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

(2) 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.

(3) 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.  It is not true that the applicant could find someone to assist him with interpretation/translation and dealing with English documents at all the material times.  The court and adjudicator owe a duty of care to self-represented litigants. 

(4) The judges erred in determining that there is no unfairness in the determination of the applicant’s claim.  The case was determined unfairly as the applicant was deprived of his right to an oral hearing.  The observations of the judges are not justified.

(5) Non-refoulement claimants should be subjected to the same treatment despite the various stages of their applications.

8.  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.

9.  Contrary to the applicant’s submission, he had in fact attended the hearings and had been given the opportunity to make oral submissions at the court below and before the Court of Appeal.  His written submissions were also considered and dealt with by the Court of Appeal, including paragraphs 4 to 9 of his skeleton submission dated 8 May 2020.

10.  His grounds concerning the lack of language assistance have been sufficiently dealt with in the previous judgments of both the Court of First Instance and the Court of Appeal.  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.

11.  The grounds pertaining to public policy and the lack of logical sense in the judgement are just bare assertions without particulars or elaboration. 

12.  On the whole, his arguments 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.  We therefore dismiss the application for leave to appeal to the Court of Final Appeal.