GURPREET SINGH v. TORTURE CLAIMS APPEAL BOARD

CAMP 168/2020

[2021] HKCA 738

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 168 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 239 OF 2017)

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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 Chu JA) handed down on 10 March 2021 ([2020] HKCA 228). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 13 November 2019 ([2019] HKCFI 2368) refusing to grant 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 17 March 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions on 29 March 2021.  Having considered his submissions, it is considered appropriate to determine this application on paper.

3.  The applicant is a national of India.  He entered Hong Kong illegally on 9 March 2012 and was arrested by the police on 20 October 2012. He raised a torture claim which was rejected by the Director of Immigration (“the Director”) on 30 August 2013.  He lodged his non-refoulement claim on 23 October 2012 on the basis that he would be ill-treated by people from Shiromani Akali Dal and arrested by the police due to the false allegation against him if he returns to India.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge.  His application was late by more than six weeks.  It was refused by the judge on 16 September 2020. 

5.  The applicant renewed his application to the Court of Appeal for extension of time to appeal on 17 September 2020.  The application was dismissed by the Court of Appeal on 10 March 2021 because the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.  The applicant stated his grounds of appeal in the Notice of Motion filed on 15 March 2021 which may be summarized as follows:

(1)  The judges erred in determining that DHCJ Bruno Chan had not failed to appreciate the significance of the applicant’s claim.  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.  This is because non-refoulement claims are life and limb cases and should be assessed with caution, considering his vulnerability and disadvantage;

(2)  The authorities, despite knowing the applicant’s language incapability, have not made reasonable arrangements to enable him to understand the contents of the judgments and thereby deprived him of the right to seek further avenue of appeal.  This is a wrongful exercise of case management power and this should be looked into carefully;

(3)  He was deprived of the right to make full grounds for his appeal. By not having the determination translated or read back to him, he could not have understood the determination to the fullest and this is unfair.  He had to submit everything in English because the Court would not accept grounds written in applicant’s own language;

(4)  The applicant had to ask for help without having the ability to verify if everything is correct and true.  The fact that oral hearings were arranged with interpreters meant that the court recognizes the significance of language assistance.  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 deprivation of the right of a litigant to seek further avenues of appeal;

(5)  The lack of procedural unfairness and such discrimination against non-refoulement claimants are unacceptable. Even though the applicant admitted that he had a friend to help him prepare Form 86 and an affirmation for judicial review, it does not mean that he can always find someone to assist him with interpretation/translation and to deal with English documents;

(6)  A judgment that has been made with the lack of evidential consideration of the issues raised in court should be deemed an erroneous judgment;

(7)  If a litigant has not been informed fully of his rights and been given the opportunity to be heard with such assistance, it cannot be said that the assistance cannot be of any use as it was not even granted in the first place.

7.  He made further contentions in his written submissions which may be summarized as follows:

(1)  The judgement of the judges does not make logical sense at all;

(2)  The judges have not considered his grounds of appeal thoroughly;

(3)  The deputy judge erred in claiming that the applicant could find someone to assist him with interpretation/translation and dealing with English document at all material times;

(4)  The deputy judge failed to acknowledge the procedural unfairness of not providing translation of the Board’s determination to the applicant;

(5)  The applicant was unable to understand the reasons behind the judgment of the Court of First Instance.  As a result of such “intentional ignorance” in procedural fairness, the burden should be shifted to the judges to help determine the grounds of appeal;

(6)  No legal assistance was provided in lodging an appeal to the Board and applying for leave;

(7)  The judges failed to consider the applicant’s request for translation even when the applicant sought reconsideration of his case on the basis of procedural unfairness;

(8)  There is no reasoning in explaining why the country of origin information in support of his assertion is completely thrown out.

Analysis and disposition

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 applicant’s grounds pertaining to the lack of language and legal assistance were sufficiently dealt with by the Court of Appeal in the judgment dated 10 March 2021.  The applicant has not put forward any reasonably arguable ground to demonstrate that the Court of Appeal was wrong in its determination.

10.  The rest of his grounds and submissions are just bare assertions without particulars, elaboration or evidence in support.

11.  In addition, the applicant 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).

12.  For the above reasons, we refuse to give leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 15 March 2021.