Mohammad Zafran v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

CACV 161/2019

[2019] HKCA 1127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 161 OF 2019

(ON APPEAL FROM HCAL NO 521 OF 2018)

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Before: Hon Kwan VP, Barma JA and Toh J in Court

Date of Written Submission:  12 September 2019

Date of Judgment:  14 October 2019

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.This is the applicant’s application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 16 August 2019 ([2019] HKCA 921), dismissing his appeal against the decision of Deputy High Court Judge Josiah Lam dated 19 March 2019 ([2019] HKCFI 689) refusing to grant leave to apply for judicial review concerning his non-refoulement claim.

2.The applicant filed a notice of motion on 29 August 2019 for leave to appeal to the Court of Final Appeal and lodged his written submission on 12 September 2019.

The grounds of appeal

3.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.  His non-refoulement claim should be assessed with caution, taking into account his vulnerability and disadvantage.

(2)  The Court of Appeal has not addressed the issues regarding paragraphs (4) to (10) of his skeleton submission dated 17 July 2019.

(3)  He cannot be expected to provide full grounds if he was not first given reasonable opportunity to understand the judgment subject to review. 

(4)  Paragraphs 17 to 18 of the judgment of the Court of Appeal is not true.  The determination of the Board was never translated or explained to him.  To deprive the litigant of his right to understand what was decided against him is equal to a deprivation of the right to seek further avenues of appeal or review.

(5)  The judges erred in not finding any reasonable prospect of success in challenging the finding of the Board in the intended judicial review.  It is not fair to expect a non-refoulement claimant, who does not speak English or Chinese, to handle and submit all such legal jargons without legal representation.  

(6)  In the course of the appeal against the decision of the Director or applying for leave, no legal assistance was provided to the applicant.

(7)  Without knowing the reasons behind the dismissal of his claim in the judgment of the Court of First Instance, he was deprived of reasonable opportunity to point out errors in full.  The burden should thus be shifted on the judges to help determine the grounds.

4.In addition to the above grounds, the applicant advanced the following arguments in his written submission:

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

(2)  The judges have not considered his grounds of appeal thoroughly.

(3)  The judge erred in claiming that he could find someone to assist him with interpretation/translation and dealing with English documents “at all material times”.  The Court and the adjudicator owe a duty of care to self-represented litigants.

(4)  The Court erred in determining that there is no unfairness in the lack of oral hearing for BOR 2 risk.

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

(6)  The applicant urges the authorities to take into account the real procedural unfairness throughout the case and to put aside the public policy of trying to dispose of non-refoulement claims as quickly as possible.

(7)  The applicant could not understand why his case was refused, including the tests and the Country of Origin information (“COI”).

(8)  There is no reasoning in explaining why COIs in support of his assertion are completely thrown out.

Discussion and disposition

5.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 30 August 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  We think it appropriate to determine this application on paper and will do so accordingly.

6.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.

7.The grounds concerning the lack of language assistance have already been sufficiently dealt with by the Court of First Instance and the Court of Appeal in the previous judgments.  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.

8.The applicant did not raise the ground of lack of legal assistance in the appeal before the Court of Appeal.  Besides, this ground had been rejected by the judge in the leave application and the judge’s determination is well founded.

9.The applicant raised some new grounds in his appeal to the Court of Appeal which had not been raised in the Court of First Instance.  The Court of Appeal has repeatedly stressed that an appeal is not the occasion for an applicant to introduce new grounds after the original grounds had failed in the court below.  Therefore, the Court of Appeal decided not to entertain those new grounds in its judgment.

10.As for the grounds pertaining to public policy and the lack of reasoning concerning the Country of Origin information, they were not raised in the leave application before the Court of First Instance or in the appeal before this Court.  It is not open to the applicant to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings. 

11.The applicant’s criticism regarding the lack of logical sense in the judgment of the Court of Appeal is just a bare assertion without particulars or elaboration.  There is no reasonably arguable ground in his arguments for reversing the judgment of this Court.  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).

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

The Applicant (Appellant), acting in person