DIN SHAMAS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 304 /2019

[2020] HKCA 250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 304 OF 2019

(ON APPEAL FROM HCAL NO 9 OF 2018)

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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 S T Poon J) handed down on 13 December 2019 ([2019] HKCA 1403). The Court of Appeal dismissed his appeal against the decision of Deputy High Court Judge Bruno Chan on 21 June 2019 ([2019] HKCFI 442) 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 23 December 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submission on 2 January 2020.  Having considered his submission, we find it appropriate to determine this application on paper and we proceed accordingly.

3.  By a Notice of Decision dated 11 August 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim.

4.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s decision and his appeal was dismissed by the Board on 22 December 2017.

5.  He filed a Form 86 on 2 January 2018 to seek leave to apply for judicial review against the decision of the Board.  His application was refused by Deputy High Court Judge Bruno Chan on 21 June 2019.

6.  The applicant filed a Notice of Appeal against the decision of the judge on 3 July 2019.  The appeal was scheduled to be heard on 10 December 2019 but the applicant was absent at the hearing.  The Court of Appeal proceeded to deal with the appeal in his absence and handed down its judgment dismissing the appeal on 13 December 2019.  The applicant filed a Notice of Motion on 18 December 2019 for leave to appeal to the Court of Final Appeal.

7.  The grounds of appeal stated in the Notice of Motion may be summarized as follows:

(1)     The Court of Appeal erred in determining that the judge had not failed to appreciate the significance of his non-refoulement claim.  The lack of assistance provided to the applicant is an error of law or procedure or evidence of procedural unfairness, or failure to adhere to a high standard of fairness.

(2)     The judges have not addressed the issues regarding paragraphs 4 to 11 in his skeleton submissions dated 10 November 2019.

(3)     The authorities should take into account the real procedural unfairness throughout the case and put aside public policies of trying to dispose of the claims as quickly as possible.

(4)     The judge failed to consider the ground of lack of language assistance. The applicant was detained and was not able to understand or explain any legal jargons.  He was not aware that the court would not hold a hearing so he could not raise such ground in early stage.

(5)     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 full understanding of their content and was deprived of the right to make a full appeal.

(6)     An applicant cannot be expected to provide full grounds if he was not given the reasonable opportunity to understand the judgment subject to review. The Court has not explained why no assistance can be provided to him and why it is not a valid point.  This is an error in the procedural fairness so his case should be reconsidered.  Unless judges have made findings that the applicant was in fact made aware of the content of the judgments or was given reasonable assistance in understanding the judgment, judges cannot dismiss the case on the basis of not including any draft grounds of appeal.

(7)     The Court is presuming that all non-refoulement claimants are the same and did not take into account the actual unique circumstances and is therefore Wednesbury unreasonable. 

(8)     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 as it was not even granted in the first place.

8.  The applicant made these further submissions in his submission in writing:

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

(2)    As a result of the intentional ignorance in procedural fairness for not translating the judgments to the applicant, the burden should be shifted on the judges to help determine the grounds.

(3)    The judges have erred in determining that there is no unfairness in the determination for his BOR 2 risk.

(4)    The case was determined unfairly as he was deprived of his right to an oral hearing and the observations of the judges are not justified.

(5)    The court has been too strict with non-refoulement claimants.  It is discriminating against people who do not have legal representation as skeleton arguments would have been something very technical that only lawyers will know how to prepare.

(6)    Non-refoulement claimants should be seen as a whole and should be subjected to the same treatment despite the various stages of their application, unless there is a good reason for not doing so.

9.  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.

10.  The applicant’s grounds pertaining to the lack of legal assistance and language assistance as well as the lack of hearing before the judge at the court below were sufficiently dealt with in paragraphs 15, 19 to 21 of the judgment of the Court of Appeal.  These parts of the judgment, together with paragraphs 13 and 22, had also covered the applicant’s arguments contained in paragraphs 4 to 11 in his skeleton submission dated 10 November 2019.  He has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing his appeal. 

11.  The rest of his grounds and submissions are bare assertions without evidence in support and do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal. 

12.  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.