Mehboob Qaiser v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office and Another

CACV 584 /2019

[2020] HKCA 639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 584 OF 2019

(ON APPEAL FROM HCAL NO 891 OF 2018)

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BETWEEN

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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 Barma JA) handed down on 9 June 2020 ([2020] HKCA 440). The Court of Appeal dismissed his appeal against the decision of Deputy High Court Judge Bruno Chan on 6 December 2019 ([2019] HKCFI 2546) 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 22 June 2020 that the Notice of Motion shall be determined on paper only without an oral hearing.  Having considered the written submissions lodged by the applicant on 2 July 2020, we think it appropriate to determine his application on paper and will proceed to do so.

3.The applicant’s non-refoulement claim was rejected by the Director of Immigration (“the Director”) by a Notice of Decision dated 11 October 2017.  His appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board(“the Board”) on 8 May 2018.

4.He filed a Form 86 on 21 May 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  His application was refused by Deputy High Court Judge Bruno Chan on 6 December 2019.

5.The applicant filed a Notice of Appeal against the decision of the judge on 17 December 2019.  The appeal was scheduled to be heard by the Court of Appeal on 27 May 2020.  The hearing was vacated as he failed to lodge his skeleton argument by the extended deadline prescribed under the direction of Kwan VP on 17 April 2020.  The appeal was dealt with on paper.  It was dismissed by the Court of Appeal on 9 June 2020.  The applicant filed a Notice of Motion on 18 June 2020 for leave to appeal to the Court of Final Appeal.

6.The applicant stated the following grounds of appeal in his Notice of Motion:

(1)     He was deprived of the right to make full grounds for appeal as the determination has not been translated to him and he could not have understood the determination to the fullest and it is unfair to him.  He had to submit everything in English because the court would not accept grounds written in his own language, otherwise he would have done that.

(2)     The Court of Appeal has erred in determining that the judge had not failed to appreciate the significance of his non‑refoulement claim. 

(3)     He urged the authorities to take into account the real procedural unfairness and to put aside public policies of trying to dispose of non-refoulement claims as quickly as possible.

(4)     The lack of assistance provided to him is an error of law or procedure, or evidence of procedural unfairness, or failure to adhere to a high standard of fairness.  Non-refoulement claims are life and limb cases and should be assessed with caution, taking into account his vulnerability and disadvantage.  The court has not provided explanation as to why no assistance can be provided to him as a litigant who does not understand the official languages and why it is not a valid point.  Since this is an error in the procedural fairness, his case should be reconsidered regardless of whether the outcome would be the same. 

(5)     He was not aware of the need to submit skeleton arguments.  Due to the non-compliance with an order, which he was totally unaware, he could not give his evidence in front of the judges.

(6)     The court is merely presuming that all non-refoulement claimants are the same by dismissing his claim for lack of language assistance and did not take into account the actual unique circumstances.  It is therefore Wednesbury unreasonable. Interpretation service should be made available if the claimant is suffering as a result of this lack of service.  There is no evidence that he has been able to understand the judgment to its fullest with the help he can get from his friends.

(7)     Unless judges have made findings that he was in fact made aware of the content of the judgments or given reasonable assistance in understanding the judgments, the judges cannot dismiss his case for not submitting any draft grounds of appeal.

(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.

(9)     Prospect of success should not be determined by the judges at this stage as the applicant has been deprived of the right of making a full appeal and to put forward his grounds fairly without language assistance. 

7.In the written submission lodged on 2 July 2020, the applicant made these submissions:

(1)     The judgment 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 the applicant could find someone to assist him with interpretation/translation and dealing with English documents “at all material times”.  The lack of language assistance still exists.

(4)     Depriving the right of a litigant to understand what was decided against him is equal to depriving him of the right to seek further avenues of appeal or review.  The fact that the judge failed to acknowledge such lack of procedural fairness amounts to an error in judgment.

(5)     Without knowing the reasons behind the dismissal of his claim by the Court of First Instance, the applicant was deprived of the reasonable opportunity to point out errors in full.  As a result of such intentional ignorance in procedural fairness, the burden should thus be shifted to the judges to help determine the grounds.  The court and adjudicator owe a duty of care to self-represented litigants.

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

8.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.

9.The court had notified the applicant by letter dated 7 January 2020 of the directions concerning the lodging of written submissions in his appeal to the Court of Appeal.  It was clearly stated in the letter that if he failed to lodge a skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for his appeal and elect to have the appeal disposed of on paper.  The applicant did not lodge a skeleton argument by the extended time.  His complaint that he could not “give evidence” in front of the judges has no substance.

10.As for his grounds concerning the lack of language assistance and legal assistance, these grounds have been sufficiently dealt with by the Court of First Instance in the previous judgment and rejected by the judge in the leave application.  The judge’s determination is well founded.  The Court of Appeal has held in the past that the high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire (Re Gurung Sagar [2019] HKCA 658 para 12) and that an applicant of a non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings (Re Paswan Shibu Lal, CACV 284/2017, 4 May 2018, para 21). 

11.In the present application, the applicant has again demonstrated that he is able to deal with English documents and put forward his grounds and submissions in English, or that he has obtained adequate assistance for the preparation of the same.

12.He criticized the judges for not having considered his grounds of appeal thoroughly. Such criticism is without basis.  As for the grounds pertaining to public policy and the lack of logical sense in the judgment, these are just bare assertions without particulars or elaboration.

13.On the whole, the grounds and submissions of the applicant do not have any reasonably arguable basis for reversing the judgment of the Court of Appeal.  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). 

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

The Applicant (Appellant), acting in person