Case Detail

CACV 352/2020

[2022] HKCA 712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 352 OF 2020

(ON APPEAL FROM HCAL NO 2439 OF 2018)

________________________

BETWEEN
	MANPREET SINGH	1^st Applicant
	MANDEEP KAUR	2^nd Applicant
	and
	TORTURE CLAIMS APPEAL BOARD	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

Before: Hon Barma JA and S T Poon J in Court

Date of Judgment: 25 May 2022

___________________

J U D G M E N T

___________________

Hon S T Poon J (giving the Judgment of the Court):

1. On 7 May 2021, this court (Barma JA and S T Poon J) handed down a judgment dismissing the applicants’ appeal against the decision of Deputy High Court Judge K.W. Lung (“the judge”) on 28 July 2020 refusing leave to the applicants to apply for judicial review. The applicants had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing their appeal from the decision of the Director of Immigration rejecting their non‑refoulement claim.

2. The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3. The applicants subsequently applied, by a Notice of Motion filed on 17 May 2021, for leave to appeal to the Court of Final Appeal. The applicants stated in the Notice of Motion that :

“ 1. First of all, we want to state that we failed to comply with the direction made by this court on 14 January 2021 requiring us to lodge skeleton submissions 28 days before the hearing of the appeal because we did not receive any letter for hearing and due to that reason, we were unable to submit skeleton submissions.
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, considering my vulnerability and disadvantage.
3. We reiterate the authorities, despite knowing of our language incapability, have not made reasonable arrangements to enable me to understand the content of the judgments and thereby depriving us of the right to seek further avenue of appeal. This is a wrongful exercise of case management power and we verily believe this should be looked into carefully as a case management power should extend all the way to how a judgment is delivered.
4. There has been procedural unfairness in the determination and the Judges have been presumptuous about our situation. It is not true that we have no reasonable prospect of success in my intended application for judicial review
5. We were deprived of the right to make full grounds for appeal. By not having the Determination translated or read back to me, we could not have understood the Determination to the fullest and is unfair to us. we had to submit everything in English because the Court would not accept grounds written in our own language, otherwise we would have done that.
6. Instead, we had to ask for help without having the ability to verify if everything is correct and true. The fact that oral hearings and hearings were arranged with interpreters mean that the Court recognizes the significance of language assistance, and therefore such assistance should extend to understanding the judgment. This is contrary to the high standard of fairness required by law if this results in a deprivation of the right of a litigant to seek further avenues of appeal.
7. We stand by my grounds about the lack of procedural unfairness and such discrimination against non-refoulement claimants is unacceptable. we admitted we had a friend to help me to prepare the submissions and the affirmation for judicial review. But it does not mean that apparently, we always can find someone to assist me with interpretation/translation and to deal with English documents. As a result, we are making this affirmation to the best of our knowledge only.
8. Prospect of success should not be determined by the Judges at this stage as we have been deprived of making a full appeal and to put forward my grounds fairly without the help of language assistance. It is not the Judges’ power to determine what we are putting in as grounds and what we are not, and therefore administratively speaking the Judges could not have possibly made a finding on prospect of success based on this ground.”
9. A judgment that has been made with the lack of evidential consideration of issues raised in Court should be deemed an erred judgment.
10. We seek a reconsideration of the case with an oral hearing arranged.”　[sic]

4. The applicants lodged a written submission in support of the application on 31 May 2021. In the written submission, the applicants reiterated the matters raised in the Notice of Motion. They also submitted that the judgment did not make sense and that their grounds of appeal had not been considered thoroughly.

5. Having considered the applicants’ Notice of Motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers. We have, therefore, determined the applicants’ application on the basis of the documents filed.

6. The matters stated by the applicants do not constitute grounds for granting leave to appeal to the Court of Final Appeal. The applicants have failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484. Nor is any such question apparent to us from the matters they have raised.

7. The applicants simply regurgitated their grounds of appeal before us (such as the complaints about the alleged lack of legal and language assistance) without identifying any supposed error in our reasons for dismissing those grounds given in [12] – [16] of our judgment. As for the rest of the grounds alleging errors on the part of the Director and the Board, they are not related to any error in our judgment and are therefore not viable grounds of application.

8. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

9. For these reasons, the Notice of Motion dated 17 May 2021 is dismissed.

(Aarif Barma)
Justice of Appeal

(S T Poon)
Judge of the
Court of First Instance

The applicant acting in person

[1] See [2021] HKCA 633

CACV 352/2020

[2021] HKCA 633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 352 OF 2020

(ON APPEAL FROM HCAL NO 2439 OF 2018)

________________________

BETWEEN
	MANPREET SINGH	1^st Applicant
	MANDEEP KAUR	2^nd Applicant
	and
	TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

Before: Hon Barma JA and S T Poon J in Court

Date of Judgment: 7 May 2021

___________________

J U D G M E N T

___________________

Hon S T Poon J (giving the Judgment of the Court):

1. This is the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 28 July 2020 refusing leave to the applicants to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 25 October 2018 dismissing the applicants’ appeal against the decision of the Director of Immigration (“Director”) dated 15 December 2017 rejecting the applicants’ non-refoulement claim.

2. The applicants have consented to their appeals being heard by two judges of the Court of Appeal.

3. The applicants are husband and wife and they are nationals of India. Their immigration history and the basis of their claims have been summarized by the judge at [3] - [6] of the Form CALL-1^{^[1]}. In short, they claim to have been attacked by the wife’s father because he opposed to their marriage.

4. By his decision dated 15 December 2017 (“the Director’s Decision”), the Director rejected the applicants’ claim having regard to the BOR 2 risk^{^[2]}, the BOR 3 risk^{^[3]}, the torture risk^{^[4]}and the persecution risk^{^[5]}grounds.

5. The applicants appealed to the Torture Claims Appeal Board. After a hearing on 14 September 2018, the Board dismissed the appeal on 25 October 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection. Primarily, the Board found that the applicants’ evidence was not credible and that state protection would be available.

The Judge’s Decision

6. The applicants filed a form 86 on 2 November 2018 which contained no ground for seeking relief.

7. In their affirmation in support of the leave application filed on the same day, the applicants advanced the following grounds for judicial review, as summarized by the judge at [13] of the CALL-1 Form:

(1)  There was no legal representation for their appeal to the Board or for this application;
(2)  There was no language assistance for them for the appeal or for this application;
(3)  The Board had not dealt with the Director’s error properly;
(4)  The hearing bundle was not translated into their language;
(5)  The country of origin information was selected without giving reason for such exercise; and
(6)  The Board refused to accept their relationship without any evidence.

8. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to give leave for judicial review. The Judge gave the following reasons in refusing to extend time and leave to apply for judicial review at [14] to [22] of the Form CALL-1:

“14. The applicants appeared before me and confirmed that they were at liberty to make their submissions to the immigration officer and Adjudicator of the Board.
15. I put the Board’s findings to them. They refused to accept the Board’s findings, making the same comments on the Board’s refusal to accept their relationship as above.
16. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.
17. The Court of Appeal in Re Khan MD Omar[2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review.
18. The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.
19. The Board had set out the reasons in its Decision why it found their evidence not credible. It was entitled to form its own views after assessment of the evidence before it. When it said that there were numerous inconsistencies that the applicants were unable to give satisfactory explanation, it would not be unreasonable for the Board to have come to such conclusions.
20. Grounds (1), (2) and (4) fail in view of the authorities above. Grounds (3) and (5) are their opinions without any evidence or particulars in support of them. Ground (6) fails too as the Board had given its reasons in its Decision why their relationship was not accepted despite documentary evidence. It found that documentary evidence was not reliable as they could be obtained by other means. The direct evidence from their oral evidence was more reliable. Such evidence did not support their relationship. This is the main reason why the Board rejected their relationship.
21. The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.
CONCLUSION
22. Since the applicants’ application for judicial review has no reasonable prospect of success, I refuse to grant them leave to apply for the intended judicial review. Accordingly, I dismiss their application.”

Appeal to Court of Appeal

9. By a Notice of Appeal filed on 11 August 2020, the applicant advanced the following grounds of appeal:

(1)  The judge failed to acknowledge their difficulty with English. The CALL-1 Form was not read to them in their native language;
(2)  The judge failed to consider the unfairness from the lack of language and legal assistance;
(3)  There was no language or legal assistance at all material times. Their inability to elaborate on the grounds raised in the affirmation was due to the lack of free legal representation;
(4)  The fact that there is no other avenue for a non-refoulement claimant to appeal against a decision made purely against credibility is unfair;
(5)  The judge ought to have considered the lack of interpretation service after the Director’s decision; and
(6)  The applicants request the translation and language assistance and for an oral hearing with interpretation service.

Skeleton Submissions

10. The applicants failed to comply with the direction made by this Court on 14 January 2021 requiring them to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

11. The hearing date on 26 April 2021 was therefore vacated and the applicants were debarred from lodging any written submissions. We have dealt with the appeal on paper on the basis of the materials already filed with the Court.

Discussion

12. We would consider the ground based on the lack of legal representation first. This court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas^{^[6]}). Representation at later stages is merits based, and this is not procedurally unfair. In any event, the applicants failed to show how the lack of legal representation caused any prejudice in the leave application.

13. As for the ground based on the lack of language assistance, we note that the applicants were able to provide Court documents in English. They identified the alleged errors committed by the Judge and made submissions on those alleged errors. It is clear that either they are reasonably proficient in English or have access to language assistance. We are also not satisfied that the applicants suffered any real prejudice from the alleged lack of language assistance.

14. We note that similar arguments based on the alleged lack of language and legal assistance had been raised in the application before the Judge. The Judge applied the relevant legal principles and dismissed those grounds in [16] – [20] of Form CALL-1. The assertion by the applicants that the Judge failed to consider the alleged unfairness from the lack of language and legal assistance is not true as a matter of fact.

15. As for the ground based on the alleged lack of avenue to appeal against a decision based purely on credibility, the applicants did not give any particulars for this ground or cite any authority in support. This ground does not appear to have any merit.

16. There is therefore no merit in the appeal and we dismiss the appeal accordingly.

(Aarif Barma)	(S T Poon)
Justice of Appeal	Judge of the
	Court of First Instance

The applicants, unrepresented, acting in person.

[1][2020] HKCFI 1725.

[2] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[5] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[6][2018] HKCA 15

MANPREET SINGH AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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