Re Ravinder Singh

CACV 251/2022, [2024] HKCA 395

On Appeal From [2022] HKCFI 1733

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 251 OF 2022

(ON APPEAL FROM HCAL NO. 2679 OF 2018)

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DECISION

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Hon Cheung JA (giving the Decision of the Court):

1.On 14 March 2023, this Court handed down the judgment ([2023] HKCA 341) dismissing the applicant’s application to appeal an order of Deputy High Court Judge Bruno Chan given on 17 June 2022 refusing his application for leave to apply for judicial review in respect of his non‑refoulement claim.

2.On 12 May 2023, the applicant filed a notice of motion and affirmation applying for leave to appeal against this Court’s judgment to the Court of Final Appeal out of time.  The applicant also lodged written submission within time.

3.On 27 December 2023, the Appeals Registry received a request from the applicant to dismiss his notice of motion.

4.Having considered the applicant’s documents, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have, therefore, proceeded to determine the applicant’s application on the basis of the documents in the case.

5.The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

6.Section 24(2) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484) provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5) further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

7.The applicant’s present application is out of time by over one month.  The applicant in his affirmation explained that he did not receive the decision.  The applicant explained that it was a delay of mail.  According to the Court record, our judgment of 14 March 2023 was sent to the applicant’s last known address in Kwun Tong on 14 March 2023 without the letter being returned.  The applicant’s delay is therefore inexcusable.  In any event, we will consider the merits of the case.

8.As to the merit of the intended appeal, section 22(1)(b) of the HKCFAO provides that leave to appeal to the Court of Final Appeal may be granted if 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.In summary the applicant stated the following in the notice of motion :

1)  The applicant was not aware of the Court letter dated 14 March 2023.

2)  The lack of assistance provided to the applicant was an error of law or procedure.

3)  The determination was never translated or read back to me.

4)  The applicant had to ask for help without having the ability to verify if everything is correct and true.

5)  The authorities have not made reasonable arrangements to enable me to understand the judgment contents.

6)  The applicant was not fully informed of his rights and was not allowed to be heard with assistance.

7)  The prospect of success should not be made at this stage because the applicant was deprived of making full appeal without the help of language assistance. Even when the documents from the applicant are written in English it does not mean they are professional and that is the reason why the applicant failed to point out errors in decision.

10.In summary the applicant stated the following in his written submission :

1)  The judgment does not make sense.

2)  He seeks reconsideration based on unfairness in that he requires language and legal assistance.

3)  The Board’s Decision was never read back or translated to him.  It is his basic right to understand what was decided against him.

4)  It is not true that he understood the decision as there were legal jargons without legal assistance.

5)  The same extends to the decision of the Court of First Instance.  Without understanding the decision he could not point out errors of law.

6)  Lack of language assistance should be deemed unlawful, as it deprives his right to lodge a full appeal.

7)  The Court did not explain why no language assistance can be provided to him.

8)  Lack of language assistance is procedural unfairness.

9)  It is discrimination against him who does not have legal access.

10)  Non-refoulement claimant should be treated the same despite various stages of his application.

11)  The authority should not dispose of non-refoulement cases as quickly as possible.

12)  Lack of language assistance still exist today.

11.The main complaint of the applicant’s notice of motion and written submission is the lack of language assistance.  In Kamran Khan [2022] HKCFI 1924 at [18] to [26], Deputy Judge To has clearly held that it is trite from the authorities that high standard of fairness does not prescribe the applicant absolute right to free legal and language assistance at all stage of the proceedings.  He held that it must be borne in mind that it was the applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, he has to live with or cope with his language disability.  He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit as and when he requires.  He has to find assistance himself from among his friends and his ethnic community.   The Court of Appeal [2024] HKCA 230 refused to grant extension of time to appeal against Deputy Judge To’s decision and further approved his view on the issue of language assistance.  The Court of Appeal in Karamjit Singh, CACV 78/2018 agreed with the Court of First Instance that it could not have been the intention of the authority that the principle of high standard of fairness would include provision of interpretation service at any time an applicant desires or requires.  

12.We are of the view that the grounds and arguments put forward by the applicant are devoid of merit.  They do not constitute viable grounds for giving leave to appeal. Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

13.Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

14.As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion.  Accordingly, we dismiss the notice of motion.

15.We would also, according to the applicant’s request for dismissal of appeal, dismiss the applicant’s notice of motion.