KAMRAN KHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 365/2022, [2024] HKCA 230

On Appeal From [2022] HKCFI 1924

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 365 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 448 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge To (“Judge”) dated 28 June 2022[1] refusing to grant leave for the applicant to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 4 February 2019.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 20 April 2018 rejecting his non-refoulement claim.

2.  On 2 September 2022, the Judge refused to extend time for the applicant to appeal against his decision of 28 June 2022.

Background

3.  The applicant is a national of Pakistan born in 1992.  He claimed to have entered Hong Kong illegally on 21 July 2013 and was subsequently arrested by the police on 29 July 2013.  He lodged his non-refoulement claim by way of written representation on 31 March 2014 on the basis that he would be harmed or killed by his relative, a man named Fiaz, and his associates due to a land dispute, if he was refouled to Pakistan.

4.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]  By a notice of decision dated 20 April 2018, the Director rejected the claim.

5.  The applicant appealed to the Board against the Director’s decision.  The Board held an oral hearing of the appeal on 19 December 2018, at which the applicant gave evidence and answered questions from the Board.  In its decision dated 4 February 2019, the Board dismissed the appeal and affirmed the decision of the Director.  The Board’s reasoning was summarised by the Judge at [11] to [15] of the Form CALL‑1:

“11.  The Board found the Applicant incredible and did not accept his evidence.  It was the Applicant’s case that Fiaz did not allow any member of his family to “trespass” on the subject land.  However, the other members of the Applicant’s family were not assaulted.  The Applicant explained that he was targeted as his brothers were too young.  He was 20 years of age in 2012 when he was attacked, but his brothers were 18, 15 and 13 years old at the time.  He then explained that he was targeted as he was the only one going to the land.  But he could offer no reason why he had to go to the land.

12. The Board also noted that the Applicant gave inconsistent versions of what happened in the incident in September 2012.  In the Questionnaire, he claimed that he was attacked but his oral testimony before the Board was that he was only verbally threatened.

13. As to the alleged existence of a land dispute with Fiaz, the Board noted that the Applicant’s family apparently took no legal action and the Applicant’s decision to flee the country would have been of no assistance to his family’s claim to the subject land.

14. On the basis of the Country of Origin Information (“COI”), the Board was also satisfied that adequate state protection and internal relocation would be available and viable options to prevent or avoid the risk.

15. Applying the law applicable to non-refoulement protection under the USM to the facts in this case, the Board found that the Applicant had failed to prove his entitlement to protection under any of the grounds under the USM.”

The Judge’s decisions in the court below

6.  On 18 February 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s Decision, and he referred to his affirmation for the grounds of appeal.   In the supporting affirmation, the applicant recited the procedural history of his claim, repeated the basis of his non-refoulement claim and criticized the decisions of the Director and the Board.  In particular, he complained that the Board did not uphold fairness in its decision due to the lack of language assistance and legal assistance provided to him in relation to explaining the appeal bundle to him, reading the Board’s decision to him and preparing his Form 86.  He also complained that the Board’s decision was drafted as a template and it did not conduct proper assessment of his claim.  The applicant further annexed both the decisions of the Board and the Director dated 4 February 2019 and 20 April 2018 respectively.

7.  An oral hearing was held on 24 May 2022.  The Judge considered the application on the basis of the documents and the applicant’s oral submissions.  On 28 June 2022, the Judge issued his decision to refuse to grant leave to apply for judicial review.  In its decision, the Judge meticulously analysed each ground advanced by the applicant and his reasons were set out in [21] to [22], [25] to [27] and [29] to [32] of the Form CALL-1 as follows:

“ 21. 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, non-refoulement claim form 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 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.

22. The Applicant said that the appeal bundle is in English. He did not have sufficient time to prepare for the hearing and did not have the means to hire the services of an interpreter. 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[15], 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 assistance himself from among his friends and his ethnic community. Indeed, the Applicant was able to file an adequately well written Form 86 and supporting affirmation in English showing he has access to interpretation services.

…

25. The Applicant complained about lack of legal and language assistance to enable him to understand the Decision and properly prepare his application for leave to apply for judicial review. He said even now he did not understand the content of the Decision. His complaint is premised on his belief that as an asylum seeker his is entitled as of right to such services at any time. That is not the law. For reasons as explained above, it was his choice to come to Hong Kong where the official languages are English and Chinese. He has to live with his disability if he is not conversant in these languages and has to find ways around it. The Decision was issued on 4 February 2019. He had three months to make his application for leave and thereafter ample time to prepare his submission, if he was minded to. As reflected by his supporting affirmation, he in fact has access to language assistance.

26. The Applicant complained that he was served by various interpreters, some of them were not qualified. All interpreters provided by the scheme are properly qualified and had been assessed by the government. Before providing their services, they were required to swear on oath or affirm that they will provide their services with his best skill and ability. Absent solid convincing evidence, his complaint is just a bare assertion.

The Decision is a template decision

27. The Applicant said it was his belief that the Director did not properly address the issues in his case but just made a standardised assessment as if using a template. The Court assumed that the complaint was also directed at the Board’s Decision. At the hearing, he confirmed that the sole basis of his belief was that the Decision was made very quickly. The hearing was held on 19 December 2018 and the Decision was delivered on 4 February 2019. The Board was quick but that does not mean its Decision is a template decision.

…

29. Having rigorously examined the Decision, the Court was satisfied that the Board had correctly identified all the issues raised by the appeal and properly dealt with them. There was nothing to suggest that the Decision was a template decision made irresponsibly. The Applicant’s belief was pure speculation on his part which was not supported by any evidence on which such inference could be drawn. In fact, the only reasonable inference that could be drawn is that the Board was efficient. There is no substance in this complaint.

The Applicant’s life is still in danger

30. In effect, this ground amounts to an appeal against the finding of fact by the Board dressed up as an application for judicial review. It is not a proper ground for application for leave to apply for judicial review. This complaint is reconsidered below in the Court’s overall scrutiny of the Decision.

Conclusion

31. Having rigorously examined the Board’s Decision, the Applicant’s grounds for application, the papers and the evidence with anxious scrutiny, the Court was 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 and quoted relevant precedents in support of its decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues raised in the claims. The Applicant’s claims are founded on his fear of harm by his relative Fiaz. The Decision of the Board was based on its finding of the Applicant’s incredibility and assessment of his risk of harm. The Board had carefully weighed the evidence and assessed his credibility. The Board found him incredible. As the Applicant bears the burden of prove of his claims, such a finding is fatal. It was on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.

32. The Board’s Decision is a finding of fact which is 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.  There were no errors of law or procedural unfairness at any stage of the non-refoulement proceeding.  The Board observed a very high standard of fairness.  Its Decision did satisfy the enhanced Wednesbury test.  Having considered his grounds for application, the Court was satisfied that the Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  For the above reasons, leave to apply for judicial review was refused.”

8.  6 days after the expiry of the 14-day time limit for appeal under Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), the applicant filed a summons on 17 July 2022 together with a supporting affirmation to apply “to set aside the Order refusing the applicant leave to apply for judicial review”.  In his affirmation, the applicant stated that he did not receive the form CALL-1 until Thursday 14 July 2022 and had no idea why there was such a delay in mail delivery.  He further stated that there was procedural unfairness as the Judge and other “authorities” did not exercise caution and diligence and that the Judge did not give weight to the applicant’s lack of language assistance.  The applicant invited the Court to provide documentary evidence to show that the decision was successfully delivered to him and he asked the Court to provide an interpreter to read the Judge’s decision to him and provide him with reasonable time to reply.  He also annexed a copy of the sealed order dated 28 June 2022 and the form CALL-1.   On 2 September 2022, the Judge issued his decision in writing refusing to extend time for appeal on the ground that the applicant had failed to show any realistic prospect of success in his intended appeal.

The renewed application before this Court

9.  By summons filed on 21 September 2022, the applicant made an application for “an order that the said Order [dated 2 September 2022] be set aside and leave to file [the] Notice of Appeal be approved”.  We shall treat this as a renewed application for an extension of time to appeal against the decision of the Judge dated 28 June 2022 refusing leave for judicial review. 

10.  In the applicant’s supporting affirmation, he stated that the Judge had erred by not taking all relevant circumstances into account in his decision.  In summary, the applicant reiterated the reason for his delay in applying for leave and his lack of language and legal assistance in all aspects.  He also complained that the Court did not entertain his request for an oral hearing and did not adjourn the matter as requested to his detriment. He annexed a copy of the sealed order and the decision of 2 September 2022.

11.  In accordance with the directions of the Registrar of Civil Appeals dated 21 September 2022, the applicant lodged his written submissions on 5 October 2022, repeating his complaints that the Judge erred in dismissing the summons and determined the decision unfairly due to the applicant’s lack of language and legal assistance and that the Court failed to provide an interpreter to read the judgment to him and adjourn the matter.   Essentially, the applicant’s submissions are the same as his previous submissions before the lower court.

12.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

13.  The applicant was late for 6 days when he filed his initial summons for extension of time on 18 July 2022.  In his supporting affirmation, the applicant said that he received the CALL-1 form by post more than 2 weeks after the date of the order and he did not know the reason for the delay.  He also submitted that there was procedural unfairness because of the lack of language and legal assistance for him to understand the decisions and further preparation of his case after the Director’s decision.  As this is not a very lengthy delay, we are prepared to focus on the merits of his intended appeal.

14.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

15.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  The Board had heard the applicant and assessed his evidence providing detailed reasons.  The Board rejected the applicant’s non-refoulement claim because it found that he was not credible and it did not accept his evidence.  It found that the applicant did not have any reasonable explanation for why he continued to “trespass” on the disputed land in light of the alleged harm and why he was the only person targeted and not his other family members.  In addition, it found reasonable state protection was available and internal relocation was viable.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

16.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision.  In relation to the applicant’s complaints on lack of assistance, we agree with the Judge’s analysis at [21] to [22] and [25] cited above, that the applicant does not have an absolute right to language and legal assistance, including arranged interpretation of the appeal bundle and of the Board’s decision and arranged legal representation before the Board.  The initial preparation of his case by the completion of the non-refoulement claim form and screening interview with the Director, where the applicant was legally represented, formed the important basis of his claim and any actions afterwards were based on this.  The applicant has failed to establish or even identify any such public law grounds for impugning the Board’s decision.

17.  It has been repeatedly emphasised by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  We also note that all the Court documents filed in this appeal and in the Court below were in English.  It is thus clear that either the applicant was himself conversant with the English language or he had access to language assistance of his own if he found it necessary. 

18.  The role of this Court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  We do not find any viable grounds of appeal.  The applicant’s complaints that there was no language and legal assistance in preparation of the appeal to the court and in understanding the Judge’s previous decisions is, as explained above, not a valid ground of appeal.  The applicant has failed to advance any substantive grounds to show how the Judge is said to have erred in dismissing his application for leave to apply for judicial review.

19.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused.  The applicant’s summons dated 21 September 2022 is accordingly dismissed.