YUSUK PRAWIT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1689/2021

[2023] HKCFI 734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1689 OF 2021

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D E C I S I O N

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INTRODUCTION

1.  This is the Applicant’s application by summons filed on 13 October 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 4 April 2022 (the “Order”) refusing his application for leave to apply for judicial review (the “Leave Application”) of the decision (the “Decision”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 18 June 2020.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal the judge’s order to the Court of Appeal within 14 days after such order was made. By the time when the Summons was filed, the application is five months and twenty-five days out of time, which is very substantial in the context of a fourteen-day appeal period.

THE LAW

3.  In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1] and AW v Director of Immigration and William Lam[2], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1)  length of delay;

(2)  reasons for the delay;

(3)  prospect of success in the intended appeal; and

(4)  prejudice to the respondent if extension was granted.

LENGTH OF DELAY AND REASONS FOR THE DELAY

4.  The Applicant’s explanation for the late appeal as stated in his Summons is that the Order dated 4 April 2022 was only received by him on 28 April 2022. If that is true, he could not have filed his appeal within time. However, that does not explain why it took him another five and half months to make the present application. He was then detained in Tai Tam Gap Correctional Institution. To assist him to make a proper application for leave, this Court gave him specific directions by letter dated 3 January 2023 to file a statement exhibiting a copy of the relevant entry in the Prisoners’ Incoming Mail Register from the correctional institution evidencing his receipt of the Order and a statement of his grounds of intended appeal.

5.  In response, the Applicant lodged a statement setting out his complaints about the Order but did not exhibit the Prisoners’ Incoming Mail Register evidencing his receipt of the Order or explaining his late appeal. He has no explanation for the very substantial delay.

GROUNDS OF APPEAL AND PROSPECT OF SUCCESS OF THE INTENDED APPEAL

6.  His grounds of appeal are more directed at the propriety of the Board’s Decision than at this Court’s decision refusing his Leave Application. Nevertheless, they will be considered in both contexts. The thrust of his grounds of appeal is procedural unfairness and irrationality arising from lack of legal representation and language assistance. He argued that as a result he had “a hard time to formulate what [he] wanted to say in English”. He submitted that the high standard of fairness obliged the Board “to make sure that [he] will not face grave human rights breaches”. Despite his convoluted English, the Court understands him to complain about lack of interpretation service at the hearing of the appeal which affected the accuracy of the evidence which he wished to express and that in turn resulted in the Board rejecting his evidence. It was therefore procedurally unfair.

7.  It is well settled legal principle that a non-refoulement claimant does not have absolute right to free legal representation at all stages of the proceedings: see Re Zafar Muazam[3], Re Zunariyah[4], Re Zahid Abbas[5], Re Tariq Farhan[6], and Re Lopchan Subash[7]. The Applicant was legally represented up to the conclusion of the screening interview, though not at the appeal before the Board. In Re Karamjit Singh[8], the Court of Appeal held that the high standard of fairness does not require provision of interpretation service at any time an applicant desired or required. The question is whether anything went amiss as a result of lack of interpretation service. To the Court’s knowledge, interpretation service is invariably provided in all stages of the non-refoulement proceedings up to and including the hearing before the Board.

8.  The Applicant had the services of an interpreter in preparing his claim and in his screening interview. He now complains he was not provided with interpretation service and that resulted in an adverse finding against him. He had not made this complaint in his Leave Application. This ground is hardly credible. But if substantiated, it would entitle him to success in the judicial review. Because of the significance of this ground, this Court called for the recording of the hearing from the secretariat of the Board. The appeal was heard by the Chairperson of the Board. Having heard the recording, this Court is satisfied beyond any doubt that a Thai/English interpreter had attended the hearing, the Applicant sworn in Thai with the assistance of the interpreter, the Chairperson explained the procedure in English which was interpreted to the Applicant in Thai, and the Applicant responded to the questions put by the Chairperson in Thai which was interpreted to the Chairperson in English. The proceedings were conducted smoothly. There is no indication in the recording that the Applicant was inhibited from presenting his case by reason of his language disability. There is absolutely no substance in this ground.

9.  As for the difficulties created by his being held in custody, the Applicant had not given any particulars. It is difficult to see how being held in lawful custody, as the Applicant was, could have given rise to any issues of procedural unfairness and irrationality in the Decision.

10.  The Applicant’s other grounds are challenges against the finding of fact and his credibility by the Board, which this Court may not intervene, save for errors of law, procedural unfairness and irrationality in the Decision: see Nupur Mst v Director of Immigration[9].

11.  The Applicant had not advanced any grounds of judicial review in his Leave Application. As explained in paragraph 14 of the Form CALL-1, in the absence of any proper ground of application, his Leave Application had to be considered by this Court undergoing a vigorous examination of the Board’s Decision with anxious scrutiny for errors of law, procedural irregularity and irrationality in the Decision. The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country. He was seeking to challenge the Board’s finding of fact that he would not face any real harm or risk, if returned to Thailand. The Board found the Applicant incredible and did not accept his evidence that he would face any real risk of harm upon his return to Thailand. It also found state protection available. The Board’s Decision is basically a finding of fact which the Court in a judicial review will not interfere save for errors of law, procedural unfairness and irrationality in its Decision. For reasons as explained in paragraphs 13 to 15 of the Form CALL-1, this Court could not find any such vitiating elements and, hence, refused his Leave Application.

12.  The Applicant is, in effect, seeking to challenge this Court’s finding that the Board’s Decision had not been tainted by any of the above vitiating elements which is the sole ground for which this Court may review the Decision of the Board; but he has not provided any arguable basis for challenging this Court’s finding. Having rigorously re-examined the Decision, the Form CALL-1 and all the papers with anxious scrutiny, the Court is unable to detect any such vitiating elements. Thus, the Applicant’s intended appeal has no prospect of success.

13.  The Applicant has a history of delay. He was almost fifteen months late in his Leave Application and almost six months out of time for appeal. Despite the Court’s direction, he has offered no explanation for the late appeal. His ground of appeal on the basis that he was not provided interpretation service at the hearing before the Board was fabricated. His conduct reflected not only his recognition that he had no reasonable ground of appeal but also an absence of a genuine intention to prosecute his appeal. His application is an abuse of legal process.

PREJUDICE TO THE RESPONDENT

14.  The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement. To allow the challenge which has no prospect of success to proceed would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control and make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. Allowing the application to proceed may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

CONCLUSION

15.  For all these reasons, the Applicant’s application for extension of time to appeal is refused.