Case Document

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CACV 27/2022

[2022] HKCA 1159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 27 OF 2022

(ON APPEAL FROM HCAL NO. 1463 of 2018)

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RE

JASVINDER SINGH

Applicant

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Before:

Hon G Lam JA and Barnes J in Court

Date of Judgment:

11 August 2022 (Hearing by way of paper disposal)

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J U D G M E N T

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

Introduction

1.By a judgment (Judgment) [1]handed down on 23 June 2022 we dismissed the applicant’s appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) made on 31 December 2021[2] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 11 July 2018. The background and reasons for our decision were fully set out in the judgment and we will not repeat them here. It should be noted that as the applicant failed to submit his written submission in accordance with the directions given by the Court, his case was dealt with by paper disposal.

2.The applicant, who is acting in person, filed a Notice of Motion dated 30 June 2022, seeking for an order to set aside our Judgment.

3.In the Notice of Motion, the applicant said (in para 2):

“I wanted to submit that I had sent my skeleton submission to this court via mail on 16 May 2022. I do not know why it failed to be delivered to the court. I was not feeling food and was sick so I used a mail postage to send the skeleton documents to the court….”

4.We have read the Notice of Motion and the written submission filed in support. We see no reason why this application cannot be disposed of on paper without a hearing.

5.The grounds forwarded by the applicant in the Notice of Motion are essentially the same as those he filed in the Notice of Appeal, ie the lack of legal and language assistance resulted in procedural unfairness. He claimed our Judgment does not make logical sense. He stressed that neither he nor his friend who assisted him understand legal jargons. He complained the lack of translation of the Board’s decision and the judgment of the Judge deprived him of his basic right of understanding the determination. He further complained that he was deprived of his right to have an oral hearing. He submitted that the Court had been too strict with non-refoulement claimants like him.

Discussion

6.In our Judgment, we have already found that in the present case, the Board rejected the applicant’s claim for non-refoulement protection due to its adverse finding as to the applicant’s credibility. The Board also found that internal relocation was viable. Thus the Board found that there was no real risk of harm in the event of refoulement. Such findings are within the province of the Board. The Court will not interfere with such assessments unless they are reversible on public law grounds.

7.We also noted that the applicant had not raised any errors or concerns as regards the Board’s assessment of credibility.

8.As for the applicant’s arguments regarding lack of legal and language assistance, we had indicated that whether the level of legal or language assistance provided would result in unfairness, depends on the circumstances. We said the following in our Judgment:

“20. The applicant was legally represented and provided with language assistance on his claim before the Director. At the Board proceedings, an interpreter was provided, and the Board decision was based on its assessment of the applicant’s oral evidence at the Board hearing compared with his previous evidence presented to the Director, as well as on country of origin information.

21. In the circumstances of this case, it is difficult to see how the level of legal or language assistance provided, in fact resulted in unfairness.

22. In any event, as this Court (differently constituted) has repeatedly held, the high standard of fairness required by law would not entail legal or interpretation service being made available at any time the applicant desires: see Re Zunariyah [3]; Re Zahid Abbas [4]; Re Lopchan Subash [5]; Re Gurnishan Singh [6]; Re Gurung Sagar [7]; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [8].”