RE AKTER SANJIDA

CAMP 598/2021

[2022] HKCA 1854

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 598 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2735 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  On 18 June 2021, DHCJ To (“Judge To”) refused to give the applicant leave to apply for judicial review concerning her non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time. She filed a summons in the Court of First Instance on 30 July 2021 for extension of time to appeal. That summons was dismissed by DHCJ Suffiad (“Judge Suffiad”) on 28 October 2021.

3.  On 29 December 2021, the applicant filed her summons in CAMP 598/2021 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 29 December 2021, the applicant lodged her written submissions in support of the Summons on 12 January 2022.

5.  Under Order 59 r.14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing. We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a Bangladeshi national. She entered Hong Kong on 23 September 2013 to take up employment as a foreign domestic helper. Her employment was prematurely terminated and she overstayed since 2 January 2014. She was arrested by the police and was then referred to the Immigration Department for investigation. On 18 October 2015, she raised her a non-refoulement claim alleging that if refouled, she would be harmed or even killed by her brother’s murderers as she refused to settle the matter by taking money from the murderers but filed a complaint against him. The factual background of this case was succinctly summarised by Judge To at [4] – [8] of the JR Decision ([2021] HKCFI 1755).

7.  By a Notice of Decision dated 25 May 2018, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”). The applicant attended an oral hearing on 5 November 2018. By its decision dated 22 November 2018, the Board dismissed the appeal and confirmed the Director’s decision. The Board, for the reasons set out in [64] to [80], found that the applicant’s evidence was inconsistent and unreliable and that she was not a credible witness. Her claimed fear of harm by her brother’s murderers, who she claimed were drug dealers and members of Awami League (“AL”), were based on hearsay evidence and her own speculation. The applicant told the Board that her brother was born in 1986 and died at his age of 22 when he was murdered in 2008. However, the news reports and death certificate produced in support of the applicant’s case related to a man by the name of MD Sentu (“Sentu”) aged between 30 and 35. The factual background and the murder as reported in the news report was inconsistent with the applicant’s evidence. She did not produce evidence to show her relationship with a person by the abovementioned name [63(ii)]. Further she had not encountered any physical harm before she left Bangladesh in 2013. Even though the applicant claimed that she came to Hong Kong for protection in September 2013, she did not raise her claim until she was arrested by police for overstaying in October 2015, which cast doubt on the true reason for her coming to Hong Kong. Objective country of origin information (“COI”) suggested that there is reasonable state protection, and internal relocation is a viable option to avoid risk, if any. For the aforesaid reasons, the Board considered that there is no real risk of harm upon her return to Bangladesh, and her non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 3 December 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision, and she advanced the following grounds for relief:

(1)  The Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement.

(2)  The Board acted in a procedurally unfair manner in dealing with the appeal.

(3)  The Board’s decision to refuse the appeal was unreasonable or irrational in the public law sense or a result of procedural errors or unfairness; and

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant.

The JR Decision

10.  The applicant attended an oral hearing on 16 June 2021. After due consideration of the decisions of the Director and the Board, the Judge refused leave to apply for judicial review for reasons set out in [13] - [29] of the JR Decision:

“Ground (1) – Unlawful exercise of discretion

13. Under this ground, she accused the Board of having unlawfully fettered its discretion by refusing her appeal on the grounds that she did not satisfy the requirement for non-refoulement protection. This cannot be a valid ground for application for leave. If the Applicant did not satisfy the requirement for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the Notice and dismiss her appeal. The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness or irrationality in its Decision. Having examined all the grounds and rigorously examined the Decision and the papers, the Court was satisfied that the Decision could not be criticized for the above reasons.

Ground (2) – Procedural unfairness

14. The basis of the Applicant’s complaint about procedural unfairness is that the majority of the documents in the appeal bundle used before the Board were in English and the Applicant did not have sufficient time to prepare for the hearing due to her limited skills in English and she being unrepresented. She also complained that she was not provided with the appeal bundle and refused an adjournment.

15. In Re Zafar Muazam[5], Re Zunariyah[6], Re Zahid Abbas[7], Re Tariq Farhan[8], and Re Lopchan Subash[9], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[10] nor the judgment of FB v. Director of Immigration[11] 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 real question is whether the Applicant was prejudiced due to lack of legal representation before the Board.

16. Similarly, a claimant does not have absolute right to free language assistance at all stages of the proceedings. In Re Karamjit Singh[12], the Court of Appeal adopted the rationale of 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, she has to live with or cope with her language disability. She cannot expect to have the luxury of any documents to be fully translated into her first language for her benefit. She has to find assistance herself from among her friends and ethnic community. Indeed, the Applicant was able to file an adequately well written affirmation in English herself.

17. The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter at the screening interview and in presenting her case to the Director. She also had the services of a qualified interpreter at the oral hearing before the Board. Though the appeal bundle is in English, it is basically made up of her NCF, the record of the screening interview and the decision of the Director in the Notice, including the Country of Origin Information (“COI”). At this hearing, she admitted that she knew what were in the NCF and the record of the screening interview. The Notice of the Director was issued to her on 25 May 2018. It was not until 28 August and 5 November 2018 that the oral hearing was held. The Notice is in English and, unfortunately, no translation was provided. She cannot expect these documents to be fully translated for her. She had in between the issue of the Notice and the oral hearing three to five months to seek assistance from among her own circle. Indeed, she had access to interpretation services as reflected in her affirmation and Form 86 filed in connection with this application which were very well written in English. Also, she could have sought assistance from the interpreter at the oral hearing before the Board. It lies ill in her mouth to attempt to overturn the result of the hearing on this ground.

18. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board. Her complaint about lack of legal and language assistance is over-exaggerated. At the hearing, after all these facts were put to her, she admitted there was no unfairness as a result of the lack of legal and language assistance.

19. Part of her complaint about procedural unfairness is that the COI relied on by the Board was not officially recognised and made up of hearsay and was outdated, which resulted in the Board making groundless speculation that it was safe for the Applicant to return to Bangladesh. She quoted three COI, namely USHR 2010, USRF 2010 and the Report on the International Commission of Jurists Mission to Bangladesh and argued that had these COI been considered by the Adjudicator, it would have been sufficient to support a finding of a consistent pattern of human rights abuses in Bangladesh and there is a lack of state protection. The Court was unable to identify the first two COI and the relevance of the third. The Applicant was also unable to produce the COI for the Court’s consideration.

20. The COI relied on by the Director and the Board are all from credible and official sources, including Country Reports on Human Rights Practices for 2017: Bangladesh published by the United States Department of State; The World Factbook, published by United States Central Intelligence Agency; Country Information and Guidance on Bangladesh: Background information, including actors of protection, and internal relocation issued in November 2014 and Country of Origin Information (COI) Report on Bangladesh dated 31 August 2013 published by the United Kingdom Government; and other news reports and articles. Other than a bald assertion of unreliability and hearsay, the Applicant provided no particulars as to what are untrue, not to mention her failure to provide any publication contradicting these COI.

21. The Applicant complained about the weighting put on the COI and that the Board was cherry-picking. This is basically a finding of fact which is solely within the province of the Board as the tribunal of fact. In any event, in view of its finding that the Applicant does not face a real chance of harm of any kind for any of the reasons claimed, the Board’s finding on availability of state protection and internal relocation was unnecessary for its decision.

22. The Applicant also made a very serious allegation of impropriety against the Board in that no hearing bundle had been provided to her before the scheduled hearing date and that the Board refused her request for rescheduling the hearing. These allegations are contradicted by the Board’s Decision. In paragraph 9 of the Decision, the Board set out a list of documents submitted by the Applicant, including her NCF, record of screening interview and ten documents in Bengali which had been translated into English for the Board’s use. These documents included the news reports and death certificate referred to in the Decision.

23. Her allegation is also contradicted by paragraph 61 of the Decision in which the Board noted that ‘the Applicant confirmed that her evidence as contained in the hearing bundle was true and correct’. The Board also noted that she ‘adopted the evidence in the hearing bundle as her evidence for the appeal’ and that ‘save for the answer to question 45 in the NCF, she also confirmed her background to be correct.’ Then the Board went on to deal with question 45. In that question, the Applicant was asked whether any member of her family had been killed or harmed in Bangladesh and she answered ‘no’. That was contrary to her case that her brother was murdered. The Decision therefore shows that she actively participated in dialogue with the Board about matters contained in the appeal bundle. She corrected her mistake in the appeal bundle. If she had not been provided with the appeal bundle, how could these have happened?

24. At one stage during this hearing, the Applicant said that the Board asked her questions such as whether a signature was hers and whether what was said in the documents was correct. What she told the Court precisely reflected the care taken by the Board in confirming with her about the correctness and truthfulness of her NCF and the record of screening interview, etc.

25. Obviously, the Applicant had the appeal bundle. Besides, the appeal bundle contains nothing other than documents provided by her and the Notice by the Director which was given to her three months before the hearing. In other words, she had all the documents. The appeal bundle is only for the Board’s use and her convenience. Even if the bundle had not been provided to her, she could not complain about procedural unfairness for it was her appeal and her burden to prove her claim with her documents. She has all the documents. All the indications are that her complaints are false and they are just irresponsible and even mala fide accusations made for the purpose of achieving her own ends in seeking leave to apply for judicial review.

26. The Court considered the complaint about procedural unfairness is absolutely groundless.

Ground (3) – unreasonableness and irrationality

27. As for the overall or general complaint about irrationality and unreasonableness in the Board’s findings, these grounds of complaint are against the findings of facts by the Board. The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[13].

28. Having rigorously examined the Decision, 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 observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. These are findings 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, unreasonableness and irrationality. There were no such elements in the Decision. The Decision was utterly without fault.

Ground (4) – Breach of greater care and duty owed to a self-represented claimant

29. The Applicant did not particularize the duty and the breach. In the light of the conclusion reached in respect of the other three grounds, the Court was unable to find there was any breach of the greater duty of care owed to the unrepresented Applicant.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant was late in filing a notice of appeal against the JR Decision. She filed a summons in the Court of First Instance on 30 July 2021 for extension of time to appeal. That was dismissed by Judge Suffiad on 28 October 2021. Hence, the Summons to this court.

Discussion

12.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).

13.  As for (1), the applicant was late by 4 weeks between the deadline for filing an appeal against the JR Decision and the summons filed in the Court of First Instance. Her delay was substantial.

14.  As for (2), the reasons for the delay, the applicant alleged in her supporting affirmation that she did not receive the JR Decision within 14 days so as to allow her to appeal within time. However, the court file showed that the JR Decision was sent to the applicant on 18 June 2021 (the same day the JR Decision was handed down) to her last reported address and it was not returned as undelivered post. There is no acceptable reason for her delay.

15.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. The applicant did not raise any proper ground of appeal or any particulars of error in law in the JR Decision. It is plainly right for the Judge to conclude that there is no realistic prospect of success in the intended appeal and dismissed the summons.

16.  In her written submissions, she stated that she would face risk of loss of life if refouled as the current ruling party is her enemy and the Bangladeshi police would to kill her upon her return; and that there are errors in the Board’s decision, namely (i) it is wrong to reject her claim; (ii) it failed to give her enough time to prepare for her appeal; and (iii) it failed to provide her with an appeal bundle with translation. These had all been thoroughly dealt with by Judge To as set out above.

17.  The applicant’s complaint that the Judge failed to find that the Board had wrongly rejected her claim is vague and general without particulars or elaboration, and it is not a valid ground of appeal: see Re Mizan Sikder [2019] HKCA 20; and Re Aziz Nasir [2019] HKCA 578. As set out above, Judge To had duly explained his reasons for rejecting the four grounds against the Board’s decision. We agree with Judge To’s findings and conclusion and see no error of law or other flaws in his reasoning.

18.  The second and third complaints were duly canvassed and rightly rejected by Judge To in [14] – [18] of the JR Decision.

19.  It is clear from the Board’s decision that the applicant’s claim was rejected on the issue of credibility as her evidence in relation to the core of her case (her brother’s murder) was inconsistent, implausible and unreliable. Her claimed fear of being harmed or even killed by the murderers was based on hearsay evidence and her own speculation. She was never harmed before leaving Bangladesh. Further, her delay in raising her non-refoulement claim only after her arrest by police for overstaying in Hong Kong cast doubt on whether she is a genuine asylum seeker. The Board found that there was no factual basis to support her claim for non-refoulement protection under any of the applicable grounds. It is perfectly open for the Board to reach its findings and conclusions and the Court would only intervene if there were valid public law grounds. As with the Judge, we do not see any in this case.

20.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

21.  As the intended appeal is unarguable, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 29 December 2021.