MIZAN JARDER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 312/2023, [2024] HKCA 4

On Appeal From [2023] HKCFI 2502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 312 OF 2023

(ON APPEAL FROM HCAL NO. 1345 OF 2023)

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JUDGMENT

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Hon Anthony Chan J (giving the Judgment of the Court) :

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge To (“Judge”) dated 29 September 2023[1] refusing to grant to the Applicant: (a) an extension of time to apply for leave to apply for judicial review; and (b) leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 19 November 2021. In that decision, the Board refused to allow the late filing by the Applicant of his notice of appeal/petition against the decision of the Director of Immigration (“Director”) dated 23 January 2017 rejecting the Applicant’s non-refoulement claim.

Background

2.  The Applicant is a national of Bangladesh born in 1980. He claimed to have entered Mainland China in March 2007 and subsequently entered Hong Kong illegally on 13 March 2007. He was arrested on 21 August 2008. His non-refoulement claim was received by the Immigration Department on 27 August 2008. The Applicant’s claim was made on the basis that if he returned to Bangladesh, he would be harmed or killed by two men called Mr Bilu and Mr Mithu due to previous violent altercations between himself and Mr Mithu, who was one of Mr Bilu’s followers. The factual background of the applicant’s claim was set out in [6.1] to [6.57] of the Director’s decision dated 15 October 2014.

3.  A brief history of the Applicant’s detainments in Hong Kong is as follows. He was convicted of the offence of illegal remaining on 8 September 2008 and sentenced to imprisonment for 6 months. On 10 April 2019, the Applicant was convicted of the offence of drug trafficking and sentenced to imprisonment for 4 years and 6 months.

4.  By his decision dated 15 October 2014, the Director rejected the Applicant’s non-refoulement claim on the grounds of BOR 3 risk,[2] persecution risk,[3] and torture risk[4]. Delayed for more than 1 month, the Applicant’s notice of appeal/petition was filed on 8 December 2014. In its decision dated 29 January 2015, the Board refused to allow the late filing of the Applicant’s appeal/petition. These decisions are not the subject matter of this appeal.

5.  By notice of decision dated 23 January 2017, the Director further assessed the Applicant’s claim based on BOR 2 risk[5] and reached a determination against him.

6.  After a delay of about 4 years and 7 months, the Board received a notice of appeal/petition from the Applicant which was posted on 29 September 2021. The notice did not indicate which decision was the subject matter of petition and the Applicant did not respond to the Board’s written enquiry for clarification. After investigation, the Board inferred that the Applicant was petitioning against the Director’s decision dated 23 January 2017. After considering the relevant provisions of the Immigration Ordinance, Cap 115, the Board proceeded to determine the late filing of petition without an oral hearing. The Board was satisfied that the Director’s decision dated 23 January 2017 was properly served on the Applicant. In the notice of appeal/petition, the reasons for lateness submitted by the Applicant were: (a) his imprisonment for 3 years; and (b) his inability to write English or Chinese. No evidence in support of the reasons for lateness was provided by the Applicant.

7.  The Board proceeded to consider whether there was sufficient evidence for it to be satisfied that the Applicant had exercised all due diligence to file his notice within time, but had failed to do so due to circumstances beyond his control. The Board found that it was almost certain that the Applicant was at liberty for the period between 18 October 2015 and 16 August 2018. He was at liberty when the Director’s decision dated 23 January 2017 was properly served at his last known address. From service up to 16 August 2018, the Applicant had more than 1½ years to seek language assistance for his petition. Although he was incarcerated from 10 April 2019, the Board further found that whilst in custody the Applicant had access to assistance from welfare officers and language interpreters for over 2 years from the date of incarceration to the date of petition, 29 September 2021. The Board found that the Applicant had delayed his petition for a total of over 4½ years.

8.  In conclusion, the Board held that the Applicant had failed to offer any reasonable explanation to account for the delay of 4 years and 7 months, failed to exercise due diligence to file the notice of appeal/petition within time and failed to show that the delay was due to circumstances beyond his control. By its written decision dated 19 November 2021, the Board dismissed the Applicant’s application to file his petition out of time.

The Judge’s decision

9.  Long after the expiry of the 3 months’ time limit laid down in Order 53 rule 4(1), on 3 August 2023 the Applicant filed a Form 86 to seek leave from the Court of First Instance (“CFI”) to apply for judicial review of the Board’s decision of 19 November 2021. He did not state any ground for judicial review in the Form 86. In the accompanying affirmation, the Applicant stated that: “The judgment of the Torture claim appeal Board was ruled on 23 January 2017. In 2018 August I was arrested. Therefore I did not know the Judgment at the time. This is the reason why my application so (sic) appeal has already been out of time.”

10.  A Memorandum of Notification of an Application for Legal Aid dated 8 August 2023 was filed in relation to the application for leave to apply for judicial review, and the leave application would have been stayed until 18 September 2023 if not for the Judge’s decision to lift the stay. On 8 August 2023, the Applicant also filed an application in the CFI for a writ of habeas corpus under HCAL 1383/2023, which was fixed to be heard on 19 September 2023. On 14 September 2023, the CFI was informed that the habeas corpus application was discontinued and the issuance of the Form CALL-1 was deferred to 19 September 2023 as if the legal aid stay had run its course (in case the legal aid application was successful). On 24 October 2023, the Director of Legal Aid filed a memorandum with the Court stating that the Applicant had been refused legal aid.

11.  The Judge considered the application before him on the basis of the documents and the Applicant’s oral submissions at the hearing on 7 September 2023. On 29 September 2023, the Judge issued his decision lifting the legal aid stay with effect from 7 September 2023, refusing to grant extension of time to apply for judicial review and refusing to grant leave to apply for judicial review. The decision to lift the stay is not an issue in this appeal. The Judge considered the Applicant’s reasons for late application for leave to apply for judicial review in light of the applicable legal principles and found that his lack of explanation for the delay was fatal to the extension of time application. The Judge also considered the grounds and prospect of success of the intended leave application. The Judge’s reasons were set out in [20] to [30] of the Form CALL-1 as follows :

“Grounds of application and prospect of success of the intended judicial review

20. As no extension of time to apply is granted, it is unnecessary to consider merits of the leave application. It is nevertheless considered hereunder for completeness and to further justify the lifting of legal aid stay.

21. The Applicant advanced the following four grounds of application for judicial review:

(1) The Director’s Further Notice and the Board’s 2017 Decision[6] were made without giving him an oral hearing and “even I was outside I didn’t receive on my home address”;

(2) He has evidence in support of his non-refoulement claim which he could not obtain as he was held in custody; he had to apply for judicial review so that he could later find his family and arrange for his evidence;

(3) He was held in prison custody in 2018 and did not have money or proper state of mind to apply for judicial review; and

(4) His life will be seriously at risk in Bangladesh.

These grounds must be considered in the context of this leave application which is to apply for leave to judicially review the Board’s 2017 Decision[7] relating to its refusal to allow late filing of the NOAP. Merits of the Director’s Further Notice which the Applicant sought to challenge if late filing is allowed is totally irrelevant. Thus, except for Ground (1), which arguably is marginally relevant, the other grounds are totally irrelevant.

22. The first thrust of the Applicant’s complaint under Ground (1) is that the Director’s Further Notice and the Board’s 2017 Decision[8] were made without giving him a chance to be heard. The decision of which the Applicant seeks to judicially review is the Board’s 2017 Decision[9] refusing his late filing of the NOAP. The quick and complete answer to his complaint is section 37ZT(2) of the Immigration Ordinance (the “Ordinance”)which mandates the Board to decide whether to allow the late filing as a preliminary decision without a hearing. That precisely is what the Board was required to do and did.

23. As for the Director’s Further Notice, it was the Applicant who chose not to furnish any further information as requested by the Director in his letter dated 4 January 2017 in which he had been informed that a decision will be made if he has not produced any relevant fact by 18 January 2017. In any event, that Further Notice is not the subject matter of the leave application.

24. The second thrust of the Applicant’s complaint under Ground (1) is that he had never received the decisions. The explanation he gave in Section 5 of the NOAP for the late filing is:

‘Making this appeal on my behalf was delayed owing to my being in prison for three years. Because I can write English and can write Chinese and this is the reason why this late filing was caused. I request you to kindly accept my appeal and given me an opportunity.’

In short, the reason he gave is that he was in prison custody for three years which prevented him from filing the NOAP. The Court also noted that he meant he could not write English or Chinese and not that he can. He did not complain in Section 5 that he had never received the Further Notice. Upon a careful analysis by the Board, the Board rejected his explanation. It found the Applicant had received the Further Notice while he was at liberty before he was put in prison custody. At this hearing, the Applicant actually confirmed that was the case. He was held in Lai Chi Kok Reception Centre since 23 August 2018 because he was framed for a court case. At the time of issue of the Further Notice, he was at liberty. This is a finding of fact which he may not challenge in a judicial review, save for error of law, procedural unfairness and irrationality. There is no evidence of no such vitiating elements. It is also an incontrovertible fact.

25. The Applicant had been given clear advice in the Notice and Further Notice that if he is aggrieved by the decision, he must appeal within 14 days of the receipt of the decision. He was also provided the address of the Board for filing the NOAP and a copy of NOAP form. In fact, he had experience in making late filing of NOAP in relation to the Director’s Notice. That application was one month and eight days out of time. His late filing was refused by the Board. By reason of that experience, the Applicant could have no misunderstanding that he must file the NOAP within 14 days of receipt of the decision if he is aggrieved by the decision, otherwise he had to give an explanation for the late filing and run the risk of being refused such late filing. With that experience in 2015 in his mind when he gave his explanation for late filing in Section 5 of the NOAP in 2017 he would not have missed this very important explanation if in fact he had not received the Further Notice at all. At this hearing, he tried to distant himself from that explanation by saying that he did not write the explanation in Section 5 of the NOAP, but he had to admit that it was written by someone on his instruction. There is no merit in this ground.

26. As for the additional evidence mentioned in Ground (2) in respect of which the Applicant asks for time to obtain, it is related to his non-refoulement claim. It must be emphasized that the subject matter of this leave application is the Board’s 2021 Decision refusing his late filing of NOAP. Merits of the claim are not in issue for the purpose of this leave application. Besides, the Applicant had raised his non-refoulement claim in 2008. It was rejected by the Director’s 2014 Notice. In between he had six years to collect evidence in support of his claim. He had another nine years since then and now to collect evidence. In all these fifteen years (albeit part of which was spent in prison), he should have collected all the evidence that he need. He has not identified what evidence he wishes to collect and has not explained why he could not have obtained it back in 2021. Furthermore, he now claims he wants to apply for judicial review so that he could be released from custody to contact his family to arrange for the evidence. That is a patent admission of abuse of legal process. There is no substance in this ground.

27. In Ground (3), the Applicant said he had no money and no proper state of mind to apply for judicial review. The facts alleged under this ground have been overtaken by subsequent events. The Applicant had in fact obtained funds to file the leave application and has already filed the Form 86. His lack of a proper state of mind to apply obviously referred to his condition in 2018 and not after he had actually filed his leave application in August 2023. His lack of funds and proper state of mind cease to be of any relevance now and certainly cannot support his application for leave to apply for judicial review. Insofar as this ground may amount to an explanation for the late application, for reasons as explained in paragraphs 10 to 14, it could not be substantiated.

28. Lastly, whether his life will be at risk in Bangladesh as suggested in Ground (4) goes to the merits of the Notice, which is now final and beyond judicial review or the Further Notice which is still binding, not having been overturned by the Board. It is irrelevant for this leave application.

29. Having rigorously examined the 2021 Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the relevant provisions of the Immigration Ordinance and key legal principles relating to the late filing of the NOAP and observed a very high standard of fairness. Obviously, the Board understood the burden of proof and standard of proof. It had carefully considered the Applicant’s explanation for the late filing and carefully analyzed the incontrovertible facts. By logical deduction from the Applicant’s failure to report his recognizance since 13 September 2018 and the record of his imprisonment, the Board found that he was at liberty for the period between 18 October 2015 and 16 August 2018. At this hearing, the Applicant confirmed that he was indeed at liberty until 23 August 2018. He could not have any complaint about this finding of fact by the Board. On this finding and the Applicant’s explanation in Section 5 of the NOAP, the Board further found he had received the Further Notice issued on 23 January 2017. This is a finding of fact solely 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 Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

30. The above conclusion is reached on the basis of incontrovertible facts and the Applicant’s own assertions. No legal representation could have changed this outcome.”

Appeal to this Court

12.  On 10 October 2023, the Applicant filed his Notice of Appeal against the Judge’s decision. His stated grounds of appeal were: “To be provided at later. We don’t have enough time to make grounds now.”

13.  The Applicant lodged his written submissions on 17 November 2023. Those submissions largely consisted of general legal principles and quoted passages from case authorities, without any explanation as to how they specifically apply to or advance the Applicant’s case. The Applicant also submitted that the Board acted in a procedurally unfair manner, because it did not properly assess his credibility. Further, he submitted that he did not have sufficient legal knowledge and money in relation to appeal and judicial review. He also complained about alleged delays of officers during his time in prison in relation to his application for judicial review. He emphasized that he was in prison for around 3 years.

14.  The Applicant had nothing further to add at the hearing of this appeal. Accordingly, we determine this appeal on the basis of the written materials before the Court.

Discussion

15.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in 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]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the CFI, the Court of Appeal will 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 decision, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

16.  In the present case, the focus of the Board was whether to allow the late filing of the Applicant’s petition. The Board found that the Applicant’s reasons for lateness, namely, being imprisoned for 3 years and inability to write English or Chinese, were not adequate to account for the significant delay of 4 years and 7 months. The Board considered the period of time when the Applicant was detained in prison, but found that there was a significant period when he was at liberty after having received the Director’s decision dated 23 January 2017. In addition, the Board did not accept that the Applicant had exercised due diligence to file his notice of appeal/petition within time, nor were there any circumstances beyond his control causing the failure to file the notice within time. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.

17.  As to the complaint about lack of language assistance, as this Court had repeatedly held, the high standard of fairness required by law does not necessarily require that interpretation service be made available at any time the applicant desires: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2019] HKCA 1403.

18.  There was nothing new that was advanced by the Applicant before the Judge. His oral evidence confirmed that he had received the Director’s decision whilst he was at liberty. The Applicant’s case was considered at length by the Judge. He has not been able to demonstrate any error in the decision of the Judge, nor has he advanced any viable ground of appeal against the Judge’s decision. We are not satisfied that there is any error in the Judge’s decision.

19.  This appeal is accordingly dismissed.