RE GURUNG INDRA KUMAR

CAMP 211/2019

[2020] HKCA 856

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 211 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 151 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 11 June 2020 ([2020] HKCA 395), this Court (Yeung VP and Pang JA) refused to grant leave to the applicant to appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 11 June 2019 in HCAL 151/2018 refusing to extend time for the applicant’s late application for leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board (“Board”) given on 9 June 2017 dismissing his petition/appeal from the decisions of the Director of Immigration (“Director”) given on 15 April 2016 and 28 March 2017 rejecting his non-refoulement claim.

2.  By a notice of motion dated 26 June 2020, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

“1. 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.

2. 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.

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 non-refoulement claims as quickly as possible aside.

4. 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.

5. By dismissing of my claim for lack of language assistance with this sentence is merely presuming that all non-refoulement claimants are the same and did not take into account our actual unique circumstances and is therefore Wednesbury unreasonable. Interpretation service should be made available if the claimant is suffering as a result of this lack of service, for example, how even till now I have not been provided with proper language assistance in understanding the judgments, nor has there been any solid evidence that I have been able to understand the judgment to its fullest with the help I can get from my friends.

6. Unless Judges have made findings that I was in fact made aware of the content of the judgments or be given reasonable assistance in understanding the judgment as a self-represented non-refoulement claimant, then the Judges cannot dismiss of my case on the basis of not including any draft grounds of appeal.

7. 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.

8. Prospect of success should not be determined by the Judges at this stage as I have been deprived of making full appeal and to put forward my grounds fairly without the help of language assistance.  It is not the Judges’ power to determine what I am putting in as grounds and what I am not, and therefore administratively speaking the Judges could not have possibly made a finding on prospect of success based on this ground.”

3.  On 17 July 2020, the Registrar of Civil Appeals directed the applicant to lodge with the Court his written submissions in support of the notice of motion on or before 3 August 2020.  The Court received the applicant’s written submissions dated 3 August 2020 by post on 24 August 2020 and 25 August 2020 (with the same copy).  Despite the applicant’s failure to lodge his written submissions as directed, we are prepared to exercise our discretion to excuse the delay.

4.  In the applicant’s written submissions, he contended that:

(a)  Our judgment was illogical and did not consider his grounds of appeal thoroughly.  His ground of appeal was that the Judge erred in finding he could find assistance for interpretation / translation to deal with the English documents “at all material times” but in fact it was not the case as the Board’s decision was never interpreted or translated to him;   

(b)  Fairness should not be limited to the process of determination but extends to the determination itself.  It is the basic right of a litigant to understand what was decided against him so that he could make a full review later on.  To deprive him of such right means to deprive him of the right to seek further avenues of appeal or review;

(c)  The Judge failed to acknowledge such lack of procedural fairness amounted to an erred judgment;

(d)  The Judge, without knowing the reasons behind the dismissal of his claim, deprived him of a reasonable opportunity to point out errors in full.  As a result of such intentional disregard of procedural fairness, the burden should be shifted to the Judges to help determine the grounds.  It was not true that he could find assistance for interpretation, translation and dealing with English documents at all material time and for this, the Court and the Adjudicator owe a duty of care to self-represented litigants;

(e)  In the course of lodging an appeal against the Director’s decisions or applying for leave, there was a lack of legal assistance rendered to him and it was the main reason “he did not elaborate all the error of Board;

(f)  The request to the Court for translation for better understanding was not considered by the judges, even though he had pointed it out for reconsideration of his case on the basis of procedural unfairness;

(g)  He only understood the facts of the case and also the fact that his claim was refused, but he could not understand the reasons why, including the tests and also the Country of Origin Information (“COI”);

(h)  There was a lack of explanation why COI in support of his assertion was rejected;

(i)  His case should proceed and reasonable opportunity and time should be given to him as a self-represented litigant;

(j)  The lack of language assistance still exists up to date; and

(k)  He sought for reconsideration of his case.

5.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

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.  In the applicant’s lengthy grounds of complaints as set out in the notice of motion and his written submissions, he mainly regurgitated his complaints about lack of language and legal assistance throughout the process of his appeal before the Board up to his applications to the Court. These arguments were duly canvassed and rejected at [18] to [20] of our judgment which we would not repeat here.   In our judgment, nothing set out in the notice of motion or his written submissions can be construed as valid grounds of appeal to the Court of Final Appeal. 

8.  Though it has recently been held by the Court of Final Appeal in H v Director of Immigration[2020] HKCFA 22 that an applicant did not need to seek leave under section 14AA of the High Court Ordinance (Cap. 4) (“Section 14AA”) to appeal to this Court in respect of a refusal of extension of time to bring an application for leave to judicial review, and technically an appeal can be brought to this Court by way of appeal out of time, it cannot assist the applicant in this instance because:

(a)  the present application is made in respect of our judgment on refusal of Section 14AA leave and it serves no purpose for an appeal to the Court of Final Appeal regarding such refusal of leave.  The reversal of our decision on Section 14AA leave would not automatically lead to success in his appeal against the Judge’s decision of 11 June 2019.  To achieve that he needs to bring an appeal to this Court;

(b) due to lapse of time, the applicant needs an extension of time to bring an appeal to this Court and if he made such application, the Court will have regard to the merits of his intended appeal in deciding if extension should be granted; and

(c)  having regard to our views on the lack of merit in his intended appeal as set out at [18] to [20] of our judgment of 11 June 2020, this Court will not grant an extension of time for a futile appeal to be brought.

9.  For the aforesaid reasons and the reasons we gave in our judgment of 11 June 2020, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and his written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

10.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.

CAMP 211/2019

[2020] HKCA 395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 211 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 151 OF 2018)

_____________________

_____________________

___________________

J U D G M E N T

___________________

Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  By a summons filed on 29 August 2019, the applicant renewed his application for leave to appeal against the decision given by Deputy High Court Judge Josiah Lam (“DHCJ Lam”) on 11 June 2019 (“the Decision”) refusing to extend time for the applicant’s late application for leave to apply for judicial.  The intended judicial review was against the decision of Torture Claims Appeal Board (“the Board”) dated 9 June 2017, in which the Board confirmed the decisions of the Director of Immigration (“the Director”) dated 15 April 2016 and 28 March 2017.

2.  The applicant’s leave application to appeal against the Decision was refused by Deputy High Court Judge Bruno Chan (“DHCJ Chan”) on 21 August 2019.

3.  The applicant now renews his leave application before this Court.  Pursuant to the directions of the Registrar of Civil Appeals given on 30 August 2019, the applicant lodged his written submissions on 17 September 2019. 

4.  Having considered the summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The applicant is a national of Nepal.  He last came to Hong Kong on 5 February 2014 as a visitor and was allowed to stay until 12 February 2014.  He did not depart and overstayed since 13 February 2014.  He was arrested by police on 23 June 2014.  On 25 June 2014, he lodged his non-refoulement claim on the basis that he would be killed by members of the Unified Communist Party of Nepal (“UCPN”) because he refused to vote and work for UCPN.    

6.  By a Notice of Decision dated 15 April 2016, the Director decided against the applicant’s claim on BOR 3 risk, the persecution risk, and the torture risk.  By a Notice of Further Decision dated 28 March 2017, the Director rejected the applicant’s claim on BOR 2 risk.

7.  The applicant appealed to the Board. After the hearing on 18 April 2017, the Board dismissed the appeal on 9 June 2017. For the reasons stated in [53] to [71] of the Board’s decision, it found that the applicant’s claim that he would be subjected to ill-treatment inflicted by the UCPN people upon his return was his pure speculation without the support of any evidence. It is the applicant’s own case that he was not physically harmed over the three alleged incidents of confrontations and threats and he admitted that the UCPN people did not approach him anymore after the third incident. The Board had considered the relevant COI and concluded that reasonable state protection and internal relocation would be available in any event. For the aforesaid reasons, the Board found that the applicant had failed to establish his claims on all applicable grounds.

DHCJ Lam’sDecision

8.  On 2 February 2018, the applicant filed his Form 86 together with his supporting affirmation for leave to apply for judicial review of the Director’s and the Board’s decisions.  In his supporting affirmation, he made the following grounds for his intended challenge:

(1)     The Board had unlawfully fettered its discretion and acted in a procedurally unfair manner.

(2)     The Board rendered unreasonable or irrational decision.

(3)     The Board had failed to meet the greater care and duty owed to a self-represented claimant.

(4)     There was no legal representation for his appeal before the Board.

(5)     There was a lack of language assistance and he had no means to find out if the interpreter had been translating the basis of his claim properly in the non-refoulement claim form (“NCF”).

(6)     The interpreter in the appeal hearing did not explain to him that the Director had also reached a decision on BOR2 risk and that it was part of the subject matter on appeal.

(7)     The applicant did not know he could appeal against the Director's further decision and the Director had failed to provide proper explanation for his decision on BOR2 risk.

(8)     The Applicant had not received the Director’s letter dated 10 March 2017 (which invited the Applicant to submit additional facts for the Director’s consideration of BOR2 risk).

9.  DHCJ Lam heard the application on 30 August 2018 and by the Decision of 11 June 2019, he refused to grant an extension of time to apply for leave for judicial review for the applicant’s failure to provide good reasons for his substantial delay of more than 5 months’ time and that his case was devoid of merit.  He also pointed out the decisions of the Director were not susceptible to judicial review once an appeal to the Board is pursued and the Board’s decision would supersede the Director’s decision.  The reasons for his refusal were duly set out at [35] – [47] of the CALL-1 Form:

“35. In the present case, the Board’s decision was issued on 9 June 2017. The Applicant only applied for leave for judicial review on 2 February 2018. Excluding the 3-month grace period for filing, he was almost 5 months late.

36. The Applicant said he did not get the Director’s letter dated 10 March 2017 (which invited the Applicant to submit additional facts for the Director’s consideration of BOR2 risk). Nor did he receive the Board's decision in June 2017. In court, the Applicant said he had been living in Flat 3A, 3/F, No 119 Parkes Street, Yau Ma Tei since December 2014. However, the Director's further decision dated 28 March 2017 showed his reported address was Room C, 1/F, 71 Waterloo Road, Yau Ma Tei. The Applicant could not complain if he failed to receive anything because he lived at a different address from the one he had reported to the authorities.

37. In court, the Applicant said he could not remember clearly when he got the Board's decision after being alerted by the Immigration Department of the result. He said he did not know about judicial review until one and a half months before he finally took out the current application on 2 February 2018. That was inconsistent with his saying in the affirmation that he was only informed of the situation by his case officer ‘last week’ (before his affirmation dated 2 February 2018) and he collected the decision one day before 2 February 2018.

38. The Applicant failed to give any truthful and good reason for his late application for leave for judicial review.

39. The Applicant was almost 5 months late in the current application. There is no good reason for the delay, which was undue and substantial. The prejudice that would be caused to the putative respondent was not insignificant. The current application for leave for judicial review involved no issue of general importance and the Applicant's argument had no merits at all.

40. The Applicant complained there was no legal representation for his appeal to the Board. He had been represented by the Duty Lawyer Service up to the Director's decision dated 15 April 2016.

41. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

42. The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while he was still represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

43. The Applicant said he had no means to find out if the interpreter had translated the basis of his claim properly in the non-refoulement claim form (“NCF”). The Applicant surely had sufficient language assistance to find out if there was anything wrong in his NCF. He could not point out any. His complaint was groundless.

44. The Applicant said the interpreter in the appeal hearing did not explain to him that the Director had also reached a decision on BOR2 risk and that it was part of the subject matter on appeal. He did not know he could appeal against the Director's further decision. He accused the Director failed to provide proper explanation for his decision on BOR2 risk.

45. The Applicant's complaint was inconsistent with his statement in para 21 of his affirmation, where he was able to cite para 6 of the Director's further decision on BOR2 risk.

46. The Applicant complained the Director was excused from attending the Board hearing. He failed to show how the Director’s absence would prejudice his appeal.

47.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’.  The Adjudicator had proper basis for her finding, conclusion and decisions which were not Wednesbury unreasonable.  She made no errors of law and there was no procedural unfairness.  The Adjudicator had engaged in joint endeavour with the Applicant in the screening process.  The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case.  The Adjudicator was acquainted with the facts.  She considered the Applicant's case carefully and applied the law correctly.  The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.”

10.  By a summon dated 24 June 2019, the applicant sought leave to appeal against the Decision.  The applicant did not provide any draft or proposed grounds of appeal in his summons but in his written submission, he stated a single ground, which essentially is that it was wrong for the Board to dismiss his appeal on the basis that he was not a target of UCPN and that his family in Nepal was never harmed and therefore he would not be at risk of any harm from the UCPN members if refouled.  The applicant further claimed that the relevant COI showed that the conflicts in Nepal between UCPN and the government had not yet been resolved; that the state had failed to protect its civilians due to corruptions and that the Board’s assessment of his claim had not been thoroughly or accurately.

11.  By the decision dated 21 August 2019, DHCJ Chan refused to grant leave under section 14AA of the High Court Ordinance, Cap. 4.  The Judge did not find any error of law or procedural unfairness in the process of the applicant’s appeal before the Board or in its decision and that none of his proposed grounds was reasonably arguable.  DHCJ Chan agreed with DHCJ Lam’s decision that there was no reasonable prospect of success in the applicant’s intended appeal, and thus dismissed the summons accordingly.

The Renew Application

12.  By the summons together with supporting affirmation dated 29 August 2019, the applicant renewed the matter before us.  In his supporting affirmation, he advanced the following grounds of appeal:

(1)     The applicant had been deprived of the opportunity to understand the judgments and to make proper grounds of appeal.

(2)     The Judges had made biased and erred judgments.

(3)     There was a lack of legal and language assistance for him to understand the decisions made by the Director and the judgments and orders made by the court.  He received no assistance as to court procedures that account for his failure to provide grounds of appeal in his application for an extension of time to apply for leave for judicial review.

(4)     It was unfair for the Judges to require the applicant to advance grounds of appeal during the oral hearing as he was not familiar with the English language and he did not understand the judgment.

(5)     The court had failed its duty of care towards non-represented litigants.

(6)     The Judges erred in not adjourning the matter and it was detrimental to the applicant.

13.  In his written submissions, he repeated his discontent for the lack of language and legal assistance and complained that up to date, his problem still existed and unresolved.  The applicant alleged that the Judge’s decision was Wednesbury unreasonable and falling short of the high standard of fairness.  He further complained that the Judges erred in dismissing his applications as they failed to take into account of his unique circumstances as a non-refoulement claimant, his lack of familiarity of the Hong Kong authorities and his lack of language capability to understand the judgments.   

Legal Principles

14.  In Kwok Cheuk Kin v Leung Chun Ying[2018] HKCA 419, the Court of Appeal held that the refusal to extend time for leave to apply for judicial review is interlocutory in nature. 

15.  According to section 14AA(1) of the High Court Ordinance (Cap. 4), no appeal shall lie to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted. Section 14AA(4) further provides that no leave to appeal shall be granted unless the court is satisfied that there is a reasonable prospect of success in the intended appeal, or that there is some other reason in the interests of justice that the intended appeal should be heard. 

16.  In assessing the prospect of success of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Re Md Shohel Sheak[2018] HKCA 714 at [13]; and Re Limbu Birkhaman[2019] HKCA 50 at [11].  For the purpose of this application, we only need to highlight the following principles:

(1)     The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

(2)     An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)     In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds of appeal advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A).

Discussion

17.  In our judgment, there is no prospect of success in the applicant’s intended appeal.  It is clear to us that DHCJ Lam was correct in refusing to grant an extension of time for the applicant to apply for judicial review.  The applicant had delayed his application for more than 5 months’ time and in the absence of any good reason for the delay, DHCJ Lam was perfectly entitled to hold that the delay was substantial and inexcusable. 

18.  Turning to the applicant’s complaints for the lack of legal assistance, it is established law that a non-refoulement claimant does not have absolute right to free legal representation at all stages of the proceedings, see Re Paswan Shibu Lal, [2018] HKCA 249, CACV 284/2017 at [21].  The applicant was provided with the Duty Lawyer Service for his interview and assessment by the Director and he had based on the same set of facts and materials when he proceeded with his appeal before and leave applications in the court.   We note that the applicant was able to advance grounds for his intended challenge without language and legal assistance when he applied for leave to apply for judicial review and we fail to see why he could not do the same for his out of time application before Judge Chan.   We take the view that the applicant had much exaggerated his problem.

19.  Regarding the complaint for the lack of language assistance, we note that the applicant was able to prepare his summons, supporting affirmation and written submissions in English language which showed that he is either familiar with the language or he has the resources to seek for the necessary assistance. 

20.  We have carefully reviewed the Board’s decision and the Decision of Judge Lam and we take the same view as Judge Lam that the Board’s decision had proper basis for its findings and conclusions which had adhered to the high standard of fairness and not Wednesbury unreasonable.

21.  In our judgment, none of the grounds of appeal and complaints in the supporting affirmation and written submissions can constitute valid ground of appeal.  In the circumstances, it would be futile to extend the time for a hopeless appeal to be brought.  Accordingly, we refuse the application for leave to appeal, and dismiss the applicant’s summons.

22.  Since the application is totally without merit, we further make an order under Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A) that the applicant may not request our determination to be reconsidered at an oral hearing.