RE ASAN BUN

CAMP 399/2022, [2023] HKCA 950

On Appeal from [2022] HKCFI 1259

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 399 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 549 OF 2019)

____________________

____________________

________________

JUDGMENT

________________

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge To (“the Judge”) dated 29 April 2022[1] which dismissed his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and also put in a written submission to support his application.   

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

5.  The applicant is a national of Indonesia aged 28.  He entered Hong Kong as a visitor on 31 March 2014 and was permitted to stay until 30 April 2014.  He overstayed and was arrested by the police on 7 January 2015.  He raised a non-refoulement claim on 27 January 2015 based on his fear of being harmed or killed by a group of Muslims due to differences in religion and political views as he is ethnic Chinese and a Buddhist. The details of the applicant’s claims were set out in the Director’s decision at [7].  We will not repeat them. 

6.  By a decision dated 6 February 2018, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.

7.  The applicant appealed the Director’s decision to the Board.  The Board heard the appeal on 13 November 2018 and by its decision dated 4 February 2019 dismissed the appeal.  Whilst the Board was prepared to accept that the applicant was targeted by a group of Muslims, it found the risk of harm has become remote due to primarily the passage of time and also the factors considered in [33] of its decision.  The Board also found that, based on credible Country of Origin Information, although there was a real risk of the applicant facing societal harassment and/or discrimination due to his ethnicity and religion, such harm did not attain the level of severity that would meet the high threshold amounting to the proscribed harm.  The Board concluded the applicant failed to establish his entitlement to non-refoulement protection under any of the applicable grounds.

8.  On 26 February 2019, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  He did not provide any grounds for relief.  On 21 December 2021, the applicant lodged a written submission in response to the Court’s letter dated 13 December 2021.  In the written submission, the applicant raised several grounds to challenge the decisions of the Director and the Board, which have been summarised below by the Judge at [15] in the Form CALL-1.

“15. The Applicant did not state his grounds for judicial review in the Form 86 or in his supporting affirmation. In response to the Court’s invitation by letter dated 13 December 2021, he advanced the following grounds and arguments:

(1) The Director and the Board “erred in determining that there is no realistic prospect of success”.

(2) The Board has not taken his “unique situation into account fairly or carefully”.

(3) The Decision was wrong and biased. The Board did not rely on any facts of his case and purely targeted him for a situation which it has no first-hand experience.

(4) He is entitled to appeal against the decision of the Director in his Notice and the Decision of the Board out of time.

(5) He was not given language and legal assistance during the appeal before the Board.

(6) The Board was biased and made its Decision on assumptions without allowing him an opportunity to explain or to elaborate. This is especially the case since he believed the Board challenged him on credibility.

(7) He was deprived of his basic right as a litigant to be informed of his legal rights, and to be duly informed of all information. The Decision has never been read or translated to him in his first language. Without being advised properly of the reasons for rejection of his claim, he could not provide full grounds for an appeal.

(8) “The [Decision] was biased and was made based on the wrong case management power.  The Department was merely trying to dispose of his case as quickly as possible and therefore did not carefully consider all the information and evidence available.”

9.  The Judge dealt with the application on paper as the applicant did not request an oral hearing.  By the Form CALL-1, the Judge refused the application for the reasons he gave in [16] to [34] as follows (footnotes omitted): 

“Ground (1) – The Director and the Board erred in determining that there is no realistic prospect of success”

16. This ground is ambiguous.  Neither the Director nor the Board had made such a determination.  The reality of the situation is that the Director rejected the Applicant’s claim for non-refoulement protection.  This is the determination of the Director as stated in the Notice.  As explained in paragraph 2, the decision of the Director is not reviewable.  The Applicant appealed against that decision to the Board.  The determination of the Board as stated in the concluding paragraph of its Decision is:

“I reject the Appellant’s non-refoulement claim as not substantiated on all Applicable Grounds. I confirm the Decision both for the Appeal and for the Petition.”

17. The Applicant disagreed with the finding of the Board.  The finding is a finding of fact solely within the province of the Board which the Court would not interfere save for errors of law, procedural unfairness or irrationality in its Decision.  The Court would re-visit this issue in its overall scrutiny of the Board’s Decision.

Ground (2) - The Board has not taken his “unique situation into account fairly or carefully”

18. The Applicant gave no particulars as to what was the unique situation which the Board did not take into account.  As shown in paragraphs 10 to 13, the Board fully set out the Applicant’s case, its finding and gave reasons for its finding.  The Board has fairly or carefully considered the Applicant’s case, including the uniqueness in his case. 

Grounds (3), (6) and (8) - The Board was bias

19. In essence, the Applicant complained that the Board (i) did not make its decision according to the facts of the case, (ii) acted on assumption, (iii) did not allow him the opportunity to elaborate and (iv) hastily disposed of his case without due care and consideration.  He did not give particulars of his various heads of complaints.

20. There is no substance in the first head of his complaint.  As stated in paragraph 10 above, the Board gave the Applicant the benefit of doubt and accepted his evidence.  It was on the basis of his evidence that it made its assessment that the Applicant will only have a remote or speculative risk of the proscribed harm.

21. It appears that the second head of his complaint is based on the Board’s refusal to accept his fear as genuine by relying on the COI, which presumably is what he called “assumption”.  The COI relied on by the Board are the International Religious Freedom Report for Indonesia published by the United States Department of State and The DFAT Country Information Report Indonesia 2017 published by the Australian Department of Foreign Affairs.  These are facts and not assumptions.  The COI are from credible and authoritative sources.  On the basis of the COI, the Board accepted in favour of the Applicant that there is a real risk that he may face societal harassment and/or discrimination from the Group or other members of FPI and/or Indonesian society more generally because of his ethnic origin and religion.  He had no objection to the Board’s acceptance of such COI.  Other than stating his subjective fear and belief, he offered no contradicting evidence or COI.  On the basis of the COI and on the totality of the evidence, including those mentioned in paragraph 10 above, the Board assessed that any harm arising to the Applicant from that harassment and/or discrimination would not be psychological or actual physical harm with such severity as would meet the meet the high threshold to amount to proscribed harm.  These are also finding of facts and not assumptions.

22. As for the third head of his complaint, it is clear from the Decision that the Applicant testified before the Board and engaged in discussion with the Board. As noted in paragraph 32 of the Decision, the Applicant corrected himself about the proper name of FPI.  He clearly had opportunity to elaborate his case before the Board.

23. His last head of complaint is just a bare assertion not supported by evidence, let alone particulars.  Having examined the Decision with anxious scrutiny, the Court was satisfied that there is no substance in this ground.

Ground (4) - The Applicant was entitled to lodge the application out of time

24. This ground is totally misconceived.  There was no issue of late filing of the Notice of Appeal against the decision of the Director in the Notice.  There is also no issue of late filing of this application for leave to apply for judicial review of the Decision before this Court.

Ground (5) – Lack of legal and language assistance before the Board

25. The Applicant complained that he was not provided with legal and language assistance in pursuing his appeal and was not provided with legal representation before the Board.  There is no dispute that such assistance had been provided to the Applicant in preparing his NCF and in his screening interview before an immigration officer.

26. In Re Zafar Muazam, Re Zunariyah, Re Zahid Abbas, Re Tariq Farhan, and Re Lopchan Subash, the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar, nor the judgment of FB v. Director of Immigration prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  The Applicant was legal represented up to the conclusion of the screening interview, but not at the appeal before the Board.  The real question is whether the claimant is prejudiced for want of legal and language assistance.

27. The Applicant had the benefit of legal representation in presenting his case to the Director.  All the benefits that legal representation could have afforded him were contained in his written submissions, NCF and answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board.  Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded him were before the Board.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board.  The Applicant suffered no prejudice due to lack of legal representation before the Board.

28. As for his complaint about lack of language assistance, as a matter of law, a claimant does not have absolute right to free language assistance at all stages of the proceedings.  In Karamjit Singh, the Court of Appeal agreed with the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required.  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 ways to cope with his disability and find assistance himself from among his friends and his ethnic community.  Indeed, the Applicant was able to file an adequately well written affirmation in English himself.

29. Furthermore, the appeal bundle is basically made up of his NCF, the record of his screening interview, and the Director’s Notice of Decision with the COI.  He knows what is contained in his NCF which was filled in by him with the assistance of an interpreter and the Duty Lawyer Service.  He knows what is contained in the record of screening interview which he attended with the assistance of interpreter and legal representation.  The record had been read back to him in his own language and he signed to acknowledge that he understood and agreed with its contents and that no amendment was necessary.  Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips. 

30. The Notice and COI are in English and unfortunately have not been translated.  As mentioned above, he has to find assistance himself from among his friends and his ethnic community.  The Notice was issued on 6 February 2018.  The oral hearing was conducted on 13 November 2018.  In between, he had more than nine months to find out what the appeal bundle is about, if he was at all serious in pursuing his non-refoulement claim.  He should not do nothing and expect the host country would translate the documents to him as and when he requires as if the host country were head-hunting for people of his expertise.

Ground (7) - deprived of his right to be informed of his legal rights and of all information

31. The Applicant complained that he was deprived of his right to be informed of his legal rights and all information.  He had obviously been informed of his right to appeal to the Board.  The Notice included a standard statement advising his right to appeal and the address of the Board.  It also included a blank Notice of Appeal.  He had also obviously been informed of his right to seek a judicial review and he timeously made the present application.

32. His real complain is that the Decision had never been read or translated to him in his first language and without being properly advised of the reasons for rejection of his claim, he could not provide full grounds for an appeal.  As explained in the above section, a non-refoulement claimant is not entitled to language and legal assistance at all stages of the non-refoulement proceedings and he suffered no prejudice through the lack of such assistance.  He has to exercise due diligence in prosecuting his claim and seek assistance beyond that which had already been provided to him from within his own resources and community.  In any event, he was able to lodge his Form 86, supporting affirmation and submission in English.  Furthermore, if he has raised any arguable issue, this Court would give him such legal assistance as is appropriate. 

Conclusion

33. As mentioned above, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  The Court had considered the specific grounds of application as advanced by the Applicant and found that there are no merits in those grounds.

34. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was also satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board assessed the Applicant’s claim on the basis of the case as asserted by him and the credible COI.  It was on that basis that the Board found that he would face no real risk of the proscribed harm if refouled to Indonesia.  In other words, he has failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.   These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success.”

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made. 

11.  By a summons filed on 21 July 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on paper, and by his decision handed down on 22 September 2022[6] refused the application. 

12.  On 30 September 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application.

13.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. 

14.  The applicant was almost 4 weeks out of time[7] when he made the application to extend the time to appeal against the Judge’s decision.  In his affirmation filed in the court below, the applicant said he did not receive the documents from the court in time.  We agree with the Judge that he has failed to satisfactorily explain the delay in that he failed to indicate when he received the Form CALL-1 despite the Judge having asked him for particulars of his explanation for delay: see the Judge’s decision dated 22 September at [3] to [4].  This being the case, the applicant has to show that his intended appeal enjoys a real prospect of success.

15.  In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  Relevantly, 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 advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, 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.

16.  Other than stating in his supporting affirmation that he disagreed with the decisions of the Judge, the applicant did not provide any ground for his intended appeal.

17.  In the written submission, the applicant stated that he came to Hong Kong for his personal safety, his enemies in his home country were very influential with had the support of the police, and what he said was true but the Director and the Board dismissed his claim and appeal.  He asked the court to allow his application for leave for judicial review as the Board’s decision was wrong. 

18.  For the following reasons, we are of the view that this renewed application has no merits:

(1)  The applicant has failed to point to any error in the Judge’s decision. 

(2)  The applicant has also not identified any error of law, irrationality or procedural irregularity in the Board’s decision.  He provided no elaboration or particulars on his submission that the Board’s decision was wrong.  It should also be noted that the Board did not make adverse finding on his credibility, and had largely accepted the factual basis of his claim.

(3)  We have also separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities.  We agree with the Judge that the intended judicial review has no prospect of success.

19.  As the applicant’s intended appeal against the Judge’s decision has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 30 September 2022.