MANPREET SINGH AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

CACV 352/2020

[2022] HKCA 712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 352 OF 2020

(ON APPEAL FROM HCAL NO 2439 OF 2018)

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J U D G M E N T

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

1.  On 7 May 2021, this court (Barma JA and S T Poon J) handed down a judgment dismissing the applicants’ appeal against the decision of Deputy High Court Judge K.W. Lung (“the judge”) on 28 July 2020 refusing leave to the applicants to apply for judicial review. The applicants had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing their appeal from the decision of the Director of Immigration rejecting their non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicants subsequently applied, by a Notice of Motion filed on 17 May 2021, for leave to appeal to the Court of Final Appeal.  The applicants stated in the Notice of Motion that :

“ 1. First of all, we want to state that we failed to comply with the direction made by this court on 14 January 2021 requiring us to lodge skeleton submissions 28 days before the hearing of the appeal because we did not receive any letter for hearing and due to that reason, we were unable to submit skeleton submissions.

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, considering my vulnerability and disadvantage.

3. We reiterate the authorities, despite knowing of our language incapability, have not made reasonable arrangements to enable me to understand the content of the judgments and thereby depriving us of the right to seek further avenue of appeal. This is a wrongful exercise of case management power and we verily believe this should be looked into carefully as a case management power should extend all the way to how a judgment is delivered.

4. There has been procedural unfairness in the determination and the Judges have been presumptuous about our situation. It is not true that we have no reasonable prospect of success in my intended application for judicial review

5. We were deprived of the right to make full grounds for appeal. By not having the Determination translated or read back to me, we could not have understood the Determination to the fullest and is unfair to us. we had to submit everything in English because the Court would not accept grounds written in our own language, otherwise we would have done that.

6. Instead, we had to ask for help without having the ability to verify if everything is correct and true. The fact that oral hearings and hearings were arranged with interpreters mean that the Court recognizes the significance of language assistance, and therefore such assistance should extend to understanding the judgment. This is contrary to the high standard of fairness required by law if this results in a deprivation of the right of a litigant to seek further avenues of appeal.

7. We stand by my grounds about the lack of procedural unfairness and such discrimination against non-refoulement claimants is unacceptable. we admitted we had a friend to help me to prepare the submissions and the affirmation for judicial review. But it does not mean that apparently, we always can find someone to assist me with interpretation/translation and to deal with English documents. As a result, we are making this affirmation to the best of our knowledge only.

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

9. A judgment that has been made with the lack of evidential consideration of issues raised in Court should be deemed an erred judgment.

10. We seek a reconsideration of the case with an oral hearing arranged.”　[sic]

4.  The applicants lodged a written submission in support of the application on 31 May 2021.  In the written submission, the applicants reiterated the matters raised in the Notice of Motion.  They also submitted that the judgment did not make sense and that their grounds of appeal had not been considered thoroughly.

5.  Having considered the applicants’ Notice of Motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicants’ application on the basis of the documents filed.

6.  The matters stated by the applicants do not constitute grounds for granting leave to appeal to the Court of Final Appeal. The applicants have failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters they have raised.  

7.  The applicants simply regurgitated their grounds of appeal before us (such as the complaints about the alleged lack of legal and language assistance) without identifying any supposed error in our reasons for dismissing those grounds given in [12] – [16] of our judgment.  As for the rest of the grounds alleging errors on the part of the Director and the Board, they are not related to any error in our judgment and are therefore not viable grounds of application.

8.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

9.  For these reasons, the Notice of Motion dated 17 May 2021 is dismissed.