RE AFZAL MUHAMMAD

CACV 207/2019

[2020] HKCA 899

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 207 OF 2019

(ON APPEAL FROM HCAL NO 1323 of 2018)

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JUDGMENT

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Hon Toh J (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 Toh J) handed down on 19 August 2019 ([2019] HKCA 926) (“the Judgement”) dismissing his appeal against the decision of Deputy High Court Judge K W Lung given on 16 April 2019. By his decision the learned judge had refused the applicant’s application for leave to seek judicial review of the decision of the adjudicator of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  By a Notice of Decision dated 14 September 2017, the Director of Immigration rejected the applicant’s claim.

3.  The applicant appealed to the Board against the Director’s decision and his appeal was dismissed by the Board on 21 June 2018.

4.  He filed a Form 86 on 9 July 2018 to seek leave to apply for judicial review against the decision of the Board.  His application was refused by Deputy High Court Judge K W Lung on 16 April 2019.

5.  The applicant filed the Notice of Appeal against the decision of the judge on 30 April 2019, the appeal was heard on 13 August 2019.  It was dismissed by the Court of Appeal on 19 August 2019.

6.  The applicant filed a Notice of Motion on 30 August 2019 and lodged his written submissions on 13 September 2019.

7.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 3 September 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  We think it appropriate to do so, and will determine this application on paper.

The grounds of appeal

8.  The grounds of appeal as stated in the notice of motion and the applicant’s written submission are summarized as follows:

(1)  that the judges should not have dismissed Ground (1) simply because generally speaking fact-and-evidence sensitive new arguments will not be entertained; 

(2)  that “it is a valid argument and without proper assistance throughout the appeal, discretion should be granted as it was indeed an error made by the lower authorities”; 

(3)  that by saying there is a lack of translation, he was not referring to having interpreter service “at all times as he may desire”, but rather because the Determination had not been officially read to him and therefore he was deprived of the right to make full grounds for appeal;   

(4)  that by not having the determination translated or read back to him, he could not have understood the determination to the fullest and is unfair to him.  He had to submit everything in English because the court would not accept grounds written in his own language;

(5)  that he 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 the 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;

(6)  that the judgment was not interpreted to him.  He cannot understand the judgment in its full scale. The court should have well recognized by now that he requires language assistance and if a court has recognized such need but refuses to grant, then it is discriminatory and be considered procedural unfairness; and

(7)  that there is a lack of transparency in the processing of non-refoulement claims and this needs to be investigated by the courts.

Discussion and Disposition

9.  Section 22(1)(b) of 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.  In the judgment, we pointed out at [19] that the high standard of fairness required by law would not entail interpretation service being made available to an applicant at all times as he may desire. 

11.  The applicant’s grounds of appeal do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal.  He has failed to identify any questions of great general or public importance which ought to be submitted to the Court of Final Appeal for determinations in accordance to the section 22(1)(b).  He has not advanced any reasonably arguable grounds to reverse the judgment of the Court of Appeal.  There is also no basis for granting leave on the “or otherwise” limb under section 22(1)(b).

12.  We therefore dismiss the application for leave to appeal to the Court of Final Appeal.