RE ISHFAQ MUHAMMAD

CACV 192/2020

[2021] HKCA 474

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 192 OF 2020

(ON APPEAL FROM HCAL NO 76 OF 2019)

_______________________

_______________________

________________

J U D G M E N T

________________

Hon Toh J (giving the Judgment of the Court):

1.  On 8 December 2020, this court (Barma JA and Toh J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the judge”) on 2 June 2020 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decision of the Director of Immigration rejecting his 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 applicant subsequently applied, by a notice of motion dated 18 December 2020, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1. 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, taking into account my vulnerability and disadvantage.

2. The Judges have not addressed the issues regarding (6) to (10) in my skeleton submission dated 27 October 2020 seeking leave to appeal against the decision of the judge dated 16 June 2020.

3. I urge the authorities to take into account the real procedural unfairness throughout the case and to put public policies of trying to dispose of nonrefoulement claims as quickly as possible aside.

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

5. Instead, I 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.

6. I stand by my grounds about the lack of procedural unfairness and such discrimination against non-refoulement claimants is unacceptable. Even in the Court I admitted I had a friend to help me to prepare Form 86 and the affirmation for judicial review. But it does not mean that apparently, I always can find someone to assist me with interpretation/translation and to deal with English documents. As a result, I am making this affirmation to the best of my knowledge only. I asked a friend to translate the content to me, but I was only given a gist, hence I cannot reply to every accusation or observation made by Court. And the help by a friend is not professional. Where I do not raise an issue that was mentioned in the Judgment, it does not mean that I agree.

7. The Court has not provided explanation as to why no assistance can be provided to me as a litigant who does not understand the official languages and why it is not a valid point. It should not matter whether the outcome would be the same with or without language assistance, but since this is an error in the procedural fairness, my case should be reconsidered.

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

9. If a litigant has not been informed fully of his rights and be given the opportunity to be heard with such assistance, then it cannot be said that the assistance cannot be of any use as it was not even granted in the first place.

10. I seek a reconsideration of the case with an oral hearing arranged.”

4.  The applicant lodged a written submission in support of the application on 5 January 2021. In the written submission, the applicant reiterated the matters raised in the Notice of Motion, particularly the need to provide translations of the court judgments to him.  He also contended that the “Judges have been presumptuous about [his] situation” and it was procedurally unfair.

5.  Having considered the applicant’s 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 applicant’s application on the basis of the documents filed.

6.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has 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 he has raised.

7.  We have already dealt with the complaints about the alleged lack of legal representation and language assistance at [13] – [14] of our judgment.  In our view, the grounds raised in the Notice of Motion are bare assertions without any legal authority.  They are lacking in particulars and do not identify any error in our determination at [13] – [14] of our judgment.  These grounds do not appear to us be reasonably arguable before the Court of Final Appeal.

8.  As for the ground based on the alleged lack of evidential consideration of issues, the applicant failed to identify the issues allegedly ignored by this court and we are not satisfied that this ground has any merit.

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

10.  For these reasons, the notice of motion dated 18 December 2020 is dismissed.